DEPARTMENT OF VETERANS AFFAIRS

Chairman, Board of Veterans' Appeals

Washington DC 20420

December 19, 1996

The Honorable Jesse Brown

Secretary of Veterans Affairs

Washington, DC 20420

Dear Mr. Secretary:

I respectfully present the Board of Veterans' Appeals Fiscal Year 1996 Report of

the Chairman for your submission to Congress. Parts I, ll, and III of this report are

intended to provide a description of the Board and its activities during Fiscal Year 1996

and the projected activities of the Board for Fiscal Year 1997, as is mandated by 38

V.S.C. § 7101(d)(1). The specific information required by 38 V.S.C. § 7101(d)(2) and

(3) is contained in Part IV of this report.

Fiscal Year 1996 was a year of remarkable accomplishment for the Board of

Veterans' Appeals. The Board's realignment, together with single Board member

decision-making authority and the other legislative accomplishments of recent years,

resulted in a more vibrant and productive organization. The significant improvement in

productivity and timeliness we realized this past year would not have been possible

without your and Deputy Secretary Gober's continued leadership and support.

I hope the enclosed report provides you, the Congress, and the veterans we serve

with a comprehensive picture of the Board's mission, activities, and dedication to putting

veterans first.

(?

Enclosure
TABLE OF CONTENTS

PART I. THE BOARD OF VETERANS' APPEALS

mSTORICAL OVERVIEW 1

mSTORICAL ORGANIZATION OF THE BOARD 6

ORGANIZATIONAL REALIGNMENT OF THE .BOARD 7

ADMINISTRATIVE INITIATIVES 10

CLAIMS FILE SECURITY 13

LEGISLATIVE INITIATIVES 14

SELECTION OF BOARD MEMBERS 16

MEMBERS OF THE BOARD OF VETERANS' APPEALS 17

ORGANIZATIONAL DIAGRAM 18

THE EVOLVING ROLE OF THE BVA PHYSICIAN 19

ATTORNEY AND AGENT FEE AGREEMENTS 20

REPRESENTATION BEFORE THE BOARD 20

LIAISON ACTIVITIES 21

PROFESSIONAL TRAINING 23

RESEARCH MATERIALS 25

CUSTOMER SERVICE 28

SCISSORS AWARDS 29

PART II. REMARKS OF THE CHAIRMAN AT THE FOURTH JUDICIAL

CONFERENCE OF THE U.S. COURT OF VETERANS APPEALS

31

, 31

33

, 34

, 35

36

REALIGNMENT: PRODUCflVffY INTRODUCTION mSTORICAL INNOVATNE A STRATEGY INITIATIVES FOR OVERVIEW AND ANEW IMPROVEMENT TIMELINESS PLATFORM FOR MANAGEMENT,

PART 1lI. FY 1996 STATISTICAL DATA

TABLES AND GRAPHS , 41

PART IV. ADDITIONAL INFORMATION PROVIDED PURSUANT TO

STATUTORY REQUIREMENTS

I. ll. ESTIMATES 38 U.S.C. § OF 7101(d)(2) 7101(d)(3) FUTURE TIMELINESS AND PRODUCTIVITY 50

III
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 (VA) that is responsible for entering the [mal 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. BVA's mission, as set forth in

38 V.S.C. § 7101(a), is "to conduct hearings 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 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 benefits, educational

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

compensation, and many more. About 90 percent of the claims before the Board involve

medical subject matter. In addition, pursuant to 38 V.S.C. § 5904, the Board is responsible

for deciding matters concerning fees charged by attorneys and agents for representation

of veterans before the Department.

mSTORICAL OVERVIEW

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

n, President Franklin D. Roosevelt established the Veteraris 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 that 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.

1933 to 1988

Before

Judicial

Review

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.

1
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 No. 87-666, effective January 1, 1963, which required the agency of

original jurisdiction to furnish an appellant a "Statement of the Case," a 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 flfstpublished

in the Code of Federal Regulations in 1964. Currently, the Board's Appeals Regulations

and Rules of Practice are contained in Parts 19 and 20, respectively, 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 BVA 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 remained the authorized strength level until 1994, when the limit on

the number of Board members was removed. 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. Appeals carried through to completion and certified

to the Board for review decreased somewhat in the early 1990s, going from almost

44,000 in FY 1990 to just over 38,000 in FY 1993.

The passage of the Veterans' Judicial Review Act (VJRA), Pub. L. No. 100-687

(Nov. 18, 1988), which established the U.S. Court of Veterans Appeals (the Court), was

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 as the Board actively

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

new procedures required to meet the continually evolving requirements of the law. Few,

if any, decisions of the Court have resulted in an improvement in decision productivity

or timeliness in the VA adjudication system. However, judicial review has resulted in

more consistent and detailed decisions.

1988 to 1996

Since Judicial

Review

As Judge Steinberg recently observed". ..[T]he evolution of VA benefits law since

the creation of this Court. ..has often resulted in new, different, or more stringent

2
requirements for adjudication." Locherv. Brown, No. 94-1097 (U.S. Vet. App. Nov.

26, 1996) (citing Stillwell v. Brown, 6 Vet.App. 291, 303 (1994).

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, BVA decisions are now longer and more complex

than they were prior to judicial review. Factors affecting the timeliness of appellate

processing include:

Timeliness

Factors

0 evidentiary development required by the Department's "duty to assist" claimants;

0 compliance with the directives of the Court in an ever-growing number of

important decisions;

0 procurement of a large number of medical opinions and extensive medical

research by the Board and its staff;

0 large volume of requests for formal hearings before the Board, as well as a

significant amount of time involved in travel for hearings at VA regional offices;

0 strict requirements imposed by more formal Rules of Practice;

0 added responsibilities of attorney fee agreement processing and review;

0 readjudication of cases remanded by the Court to the Board;

0 readjudication of cases returned from VA regional offices to the Board following

completion of development requested by the Board on remand.

Two Court decisions issued early in FY 1996 indicated a possible change of position

by the Court regarding its oversight authority. In Cleary v. Brown, No. 91-2006 (U.S.

Vet.App. Oct. 5, 1995), the Court concluded that it does not have authority to retain

general and continuing jurisdiction over a decision remanded to the Board for a new

adjudication, noting that "[n]owhere has Congress given this Court either the authority

or the responsibility to supervise or oversee the ongoing adjudication process which

results in a BV A decision." Similarly, in a single-judge nonprecedential decision, Morris

v. Brown, No. 95-941 (U.S. Vet.App. Oct. 26, 1995), the Court observed that "there is a

heavy workload at the BVA," and that "[i]t would be most unwise and injudicious for

this Court to intervene and purport to establish priorities and micromanage the caseload

of the BVA."

As the graph to the right shows,

B VA's response time increased from 800

240 days at the end of FY 1992 to 781 700

days at the end of FY 1994. By the 600

end of FY 1996, response time 500

400 decreased to 595 days. The Board 300

estimates that it will reduce response 200

time to 504 days by the end of FY

1997.

BV A Response Time, FY 92 -96 Response time is the

number of days

required for BVA to

render decisions on

all pending certified

appeals at the

processing rate of the

immediately

preceding one year

time frame.

FY

95

FY

96

*Esti

FY

92

FY

93

FY

94

3

FY

97*

mated
In FY 1996, there were 74,757 notices of disagreement filed. This represented a 13

percent increase over the 66,104 filed in FY 1995. However, 35,121 appeals were

actually filed in FY 1996. These were cases certified as ready for BVA review, but

whose case folders were retained in the field, plus those case folders that were physically

received at the Board, most of which were appeals returned to the Board following

remand development.

The VJRA made a hearing before a "traveling section of the Board," or "travel Board"

hearing, a matter of statutory right. This led to a sixfold increase in demand for such

hearings. By FY 1994, the increase in BV A response time had resulted in an unacceptably

long period between the time when a hearing was held and the time when the Board

actively reviewed the associated case, which often rendered information provided during

the hearings outdated and of limited usefulness by the time the Board began its review.

Travel hearings proved to be a double-edged sword: Appellants benefited from the

convenience and cost savings from hearings held closer to their homes, but the increased

amount of time Board members spent traveling to and from hearings reduced the amount

of time available to them to decide cases.

Increased

Demand

for Hearings

The "Board of Veterans' Appeals Administrative Procedures Improvement Act of

1994," Pub. L. No. 103-271, specifically authorized the Board to conduct hearings by

videoconference. BVA began conducting videoconferenced hearings in FY 1995 and

will expand their use in FY 1997. The Board's plans for expanding the use of

videoconferencing to conduct personal hearings and as a training and information

exchange vehicle are discussed in more detail on pages 11 and 12.

The VJRA removed a historic $10 limitation on the fees that may be charged by

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

original jurisdiction to review agreements for the payment of such fees. The private bar

has not shown significant interest in the practice of veterans' law, representing only 3.4

percent of appellants whose

appeals were decided by the Board

in FY 1996 and 3.1 percent in FY

1995.

Many Court decisions have had

a significant impact on the VA

adjudication process. Since 1991,

Court decisions have been binding

on VA as of the date they are issued.

This sometimes requires the Board

to stop the flow of cases, identify

cases affected by a Court decision,

and readjudicate them. The Board now schedules personal hearings to be held

at a time proximate to when the associated appeal will

be reviewed and decided.

4
The Court has ruled that the Board must consider every potentially applicable

regulation in its decision, regardless of whether it was raised by the appellant or considered

in the field. In Robinette v. Brown, 8 Vet.App. 69 (1995), the Court held that even in

circumstances where a claim is not well-grounded and, hence, VA's "duty to assist"

under 38 V.S.C. § 5107(a) does not apply, VA is required by 38 V.S.C. § 5103(a) to

notify the claimant, in certain circumstances, of the evidence necessary to complete an

incomplete application for benefits.

Many decisions are returned to the Board for readjudication by the Court as a result

of binding decisions issued by the Court subsequent to the Board's original decision.

Similarly, the Board's own remand rate has been about twice that experienced before

judicial review began. Chief among the Board's reasons for remanding cases are the

need for more recent medical examinations, the need to obtain appellants' private medical

records, and the need for additional due process development, such as the holding of a

requested hearing or the de novo consideration by regional office personnel of additional

issues identified as having potential applicability, as previously discussed. Other cases

must be remanded because of Court decisions issued between the time a VA field

adjudication is made and the time it comes before the Board on appeal. Readjudication

of decisions remanded by the Court to the Board and those returned from the regional

offices after the Board has remanded them results in a vastly increased workload for the

Board and a longer wait for appellants to obtain resolution of their cases.

Effects of

Court

Decisions

The Court's ruling that Board decisions include statutorily required supporting

"reasons or bases" also has had a profound impact on the way the Board adjudicates

cases, not only by making Board decisions longer and more complex, but by imposing

a more adversarial tone to Board decisions, in contrast to the past. For example, the

Board is now required to make a candid assessment of the credibility of lay testimony

and can no longer decide cases on the basis of the medical expertise of its members,

relying instead solely on the evidence of record. The Court has raised serious questions

about the fairness and impartiality of the Board's procedures for utilizing medical adviser

opinions from physicians employed by the Board. The role of BVA's physicians is

discussed in detail on pages 19 -20 of this report. Still other Court decisions require the

Board to be more technical and "legalistic" in its decision writing.

In the early years of its existence, the Court expanded the reach of its jurisdiction,

holding that the Board is required to adjudicate contentions that it has committed "clear

and unmistakable error" in rendering previous decisions that have since become final,

and holding that the Court had jurisdiction to review the Chairman's denials of motions

for reconsideration. However, the U.S. Court of Appeals for the Federal Circuit reversed

the Court, deciding that the clear and unmistakable error review authority in 38 C.F.R.

§ 3.105(a) relates only to review of agency of original jurisdiction decisions and not

those of the Board. The Court of Appeals later found that the Court had no jurisdiction

over "acts or decisions of the Chairman absent some underlying final decision by the

board."

5
Since July 1994, the Board has been authorized to issue decisions made by individual

Board members, rather than by panels of three members, a procedure that has significantly

enhanced productivity. Also in FY 1994, the Board implemented revised docketing

procedures, permitting the assignment of docket numbers as soon as a "substantive

appeal" (VA Form 9) is filed, rather than when an appeal folder is received at the Board.

This procedure eliminates the disadvantage previously experienced by appellants who

requested travel Board hearings, whose folders remained at VA regional offices and

whose appeals, therefore, were not docketed until after the hearing was held.

FY 1994

Reforms

Many of the initiatives implemented during FY 1994 and FY 1995 had been

recommended by the Select Panel on Productivity Improvement for the Board of Veterans'

Appeals in FY 1994. Some of the Panel's recommendations involved, in whole or in

part, elements of the Department other than the Board and some required statutory and

regulatory action before they could be implemented. Specific Panel recommendations

under the cognizance of the Board that have been fully or partially implemented are

discussed within appropriate sections of this report, including: revised timeliness

measurement standards; elimination of pay disparity and term appointments; improved

attorney training; technological improvements such as on-line research tools and

document imaging; and videoconferenced hearings.

Select

Panel

mSTORICAL ORGANIZATION 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 Chainnan,

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

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

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

Board is authorized to consist of a Chairman, a Vice Chainnan, and an unlimited number

Statutory

Charter

Each year since 1994, the

Board has honored

veterans of different wars

on the covers of its Fiscal

Year Report of the

Chairman.

This covel; honoring

America's World War II

veterans, was one of many

tributes to WW II veterans

BVA conducted as an

official 50th Anniversary of

WW II Commemorative

Organization.

6
of Board members. The Board is also authorized by § 7l0l(a) to have "sufficient"

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

accomplish its mission. (BVA's organization chart is shown on page 18.)

All members of the Board, except the Chairman, are appointed by the Secretary, with

approval of the President, based upon the recommendations of the Chairman. The fixed

terms of office for Board members that were prescribed by th.e VJRA in 1988 were

eliminated in November 1994 by the "Veterans' Benefits Improvements Act of 1994,"

Pub. L. No. 103-446. This legislation also restored the historic comparability between

Board member pay and that of Administrative Law Judges. Board members are the

only federal employees at this level who require Presidential approval for appointment.

The Chairman serves at the Assistant Secretary (PAS IV) level, and the Vice Chairman

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

Presidential

Approval

Since the enactment of Pub. L. No. 103-271, which was signed into law on July 1,

1994, most decisions of the Board are reviewed and decided by individual Board

members. Prior to Pub. L. No. 103-271, the law required that three member panels

review and decide each appeal. To support the three-member panel requirement, the

Board was divided into 21 decision-making units (Board sections), each generally

composed of three attorney Board members, one of whom was designated Chief and

bore the supervisory responsibility for the section. A professional staff of eight or nine

staff counsel, attorneys graded from GS-9 through GS-14, were assigned to each Board

section. A separate administrative support operation provided clerical and other

administrative assistance services to the Board sections.

Panel

Decisions

The organizational structure of the Board underwent relatively few major changes

for more than a decade prior to FY 1995. Although the control division concept introduced

in the BVA Administrative Service a few years earlier could be considered a major

change for that component of the B VA operation, that change remained restricted to the

administrative operations. BVA continued to be divided into its two principal

components, the Professional and Administrative Services. Functional responsibilities

and authorities remained basically unchanged from those in effect in the 1980s and

earlier, and the organizational structure reflected the prevailing management philosophies

of that era. The "Board"section" arrangement also reflected the legal requirement that

decisions be issued by panels, usually consisting of three members. BVA remained a

highly centralized organization with relatively little delegated authority other than the

authority of Board members to decide appeals.

ORGANIZATIONAL REALIGNMENT OF THE BOARD

The single member decision-making authority granted by Pub. L. No. 103-271

eliminated the statutory requirement for configuring the Board in "sections." The new,

less restrictive decision-making environment afforded BVA the opportunity to develop

a platform for management based on the post-VJRA realities of the Board's mission.

Single

Member

Decisions

'7
After considering various possible organizational

structures, including that of retaining the Board section

arrangement, the Board embarked on an organizational

realignment that afforded the best prospects for

improving overall productivity and decision timeliness.

The Board's realignment created an atmosphere in

which Board members, staff counsel, and administrative

support personnel could interface directly and regularly,

TEAM I thereby establishing a greater sense of teamwork. The

new structure allowed sufficient latitude for different,

even competing, managerial styles to be used by similarly staffed teams and reduced

administrative overhead by reducing the number of identical administrative positions

required to support the former 21 Board sections, thereby allowing the Board to hire

additional attorneys without exceeding its FfE limit. It also reduced the supervisor to

staff ratio and increased individual responsibility and accountability. The realignment

was completed at the end ofFY 1995, and its beneficial effects began to be felt from the

very beginning of FY 1996. However, government shutdowns and inclement weather

in the Washington, DC, area masked realignment's immediate positive effects.

ANew

Platformfor

Management

At the heart of the realigned Board are four "decision teams." These teams form the

true line component of the Board, containing the Board members and staff counsel who

review and decide appeals. Each decision team is organized alike from a staffing

perspective. The target staffing level for each of the decision teams is one Deputy Vice

Chairman (DVC) at an AL2 level, 15 Board members, and approximately 60 to 70

attorneys and 18 administrative personnel. Each decision team operates as a semiautonomous entity with considerable latitude regarding internal operating procedures,

such as case assignment practices, and the way in which

Board members, attorneys, and administrative

personnel are configured into work units.

Decision

Teams

Virtually all aspects of the processing of appeals

occur within the confines of the decision teams.

Administrative personnel assigned to each of the four

decision teams are essentially those that comprised four

of the five former control divisions, plus two to four

additional administrative FTE. Although BVA's

administrative personnel continue to be assigned to the

Administrative Service for performance evaluation

purposes, they receive day-to-day operational guidance

from their decision team DVC. The new arrangement

has allowed the Board to combine redundant

administrative positions and eliminate others, thereby

rf'-1\:=

.

I

)

,.,

TEAM IV

8

~
providing the opportunity to hire additional attorneys without

exceeding the limit on the total number of Board employees.

BVA's administrative personnel facilitate the efficient

processing of appeals by performing such essential tasks as

case management and tracking, docket control, scheduling of

hearings, correspondence preparation and dispatching,

secretarial and transcription services. They also conduct

critical liaison activities with veterans, veterans' service

organizations (VSO), Members of Congress and their staffs,

and other interested parties. The Board's transcription unit,

located in Wilkes-Barre, Pennsylvania, electronically transmits

draft decisions, hearing transcripts, and other documents to

the Board's offices in Washington, DC.

Within each decision team, DVCs have the authority to assign Board members and

attorneys (as well as administrative personnel) into whatever decision-making

configurations they feel produce the best, measurable results. Each DVC is assisted in

the supervision of the professional staff by two Chief Board members.

Delegated authority, outcome accountability, and competition are the driving forces

for the decision teams. While the DVCs have considerable authority and latitude in how

their decision teams are structured and how they operate, certain parameters, obviously,

form the framework within which they do so. Decision teams must abide by all laws

and regulations, and by certain policies and procedures issued by the Board.

A key element of BVA's current organizational structure is the alignment of the decision

teams' workload along geographical lines. Each decision team is aligned with specific

VA regional offices and is responsible for deciding appeals originating from those offices.

However, those cases that had been remanded to regional offices prior to the realignment

are assigned, upon their return from remand development, to the Board member who

signed the remand decision, regardless of the geographic origin of the appeal. This

geographic linkage has engendered a heightened level of continuity and familiarity

between the operating units of BVA and the Veterans Benefits Administration and has

resulted in better communication and case control.

Geographic

Alignment

The basic procedures involved in the preparation of a

draft decision for Board member review and many of

the routine tasks involved in the processing of an appeal

by the Board are the same under BVA's realigned

configuration as they were prior to realignment. DVCs

are responsible for the management of their decision

teams' caseload and procedures for the assignment of

individual appeals to staff counsel for the preparation of

written tentative decisions. Counsel typically prepare

Decision

Preparation

9
draft decisions on individual computer work stations and submit the completed tentative

decisions to Board members within their decision team for review. Alternatively, counsel

dictate draft decisions that are transcribed before being submitted for a Board member's

review. Board members 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 member

is finalized and signed by the member, the decision undergoes a quality review within

the decisioo team and is then dispatched by its administrative personnel.

A staff of medical advisers assists Board members by conducting medical research

and training staff counsel on medical issues. In addition, medical evaluations 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.

ADMINISTRATIVE INITIATIVES

On June 25, 1996, the Board established a Veterans Infonnation Office (VIO) at its

Transcription Division in Wilkes-Barre, Pennsylvania, to answer general questions about

the Board's processes and procedures and to provide current appeal status infonnation

to appellants and other inquirers. In addition, the VIO allows appellants to report address

changes or, when necessary, obtain a referral for more substantive or specialized services.

Establishment of the VIO did not require the hiring of any additional personnel, as the

unit has been staffed by employees of the Board's already existing transcription division,

who serve in the VIO for two or three month periods before returning to their traditional

duties.

Veterans

lnfonnation

Office

The cover of the Fiscal

Year 1995 Report of the

Chairman honored

veterans of the

Korean Wa1:

This cover featured a

portion of the reflecting

wall of the Korean War

Memorial in

Washington, DC, which

was dedicated on

July 27, 1995.

10
'ill IIJ'l l : I! lJU j--"- !IIil :iJ.. ,-

~

~

By shifting a large

volume of the information

functions to the VIa -

functions that were

previously performed by

BVA's administrative

support personnel in

Washington, DC -the

Board has been able to

minimize the need for

additional administrative

employees to support its

expanding staff of attorneys.

~

..;:~~~~!~~~~~-. ~,~ ~;~:-" ..

~--

--

Efficient handling of appeal folders -including receipt,

distribution to service organization representatives, staff The Board continues to

counsel and Board members, and the copying and delivery of introduce administrative

decisions -is essential to the Board's operation. initiatives to meet the

challenges resulting from judicial review and to improve its service to veterans and

their families. In recent years, these initiatives have included the complete revision of

decision analysis and format (1991); the use of single Board member hearings as opposed

to panel hearings (1992); the introduction of a "trailing" hearing docket (1993);

improvements in direct responses to customers and responses to Congressional and

other inquiries (1993); the consolidation of all Washington, DC, employees in one

building (1993); reduction of the time-consuming restatement of the history of each

case contained in the "Introduction" section of Board decisions (1994); and the

implementation of revised docketing procedures, permitting the placement of cases on

the Board's docket as soon as a "substantive appeal" (VA Form 9) is filed, rather than

when an appeal folder is received at the Board (1994).

In 1996, the Board introduced an expanded training program for administrative

personnel and developed a procedural reference manual to guide new employees, to

improve consistency of administrative processing practices, and to enable employees to

keep abreast of procedural changes required by Court decisions, BVA's organizational

realignment, and the Board's vastly improved productivity.

The Board continued testing the use of videoconferencing to conduct personal hearings

and examined the effectiveness of this technology as a vehicle for conducting training

and infonnation exchanges between BVA and VA regional offices. Through the use of

this interactive video technology, Board members can conduct hearings from Washington,

DC, while appellants and their representatives present their cases from their local regional

offices. Videoconferencing affords veterans the opportunity to have hearings held before

Board members without incurring the expense of traveling to Washington, DC, and -

especially for those in more remote areas -without having to wait for "travel Board"

hearings that might be held only once or twice each year in their areas due to cost and

time constraints. Videoconferencing conserves the productive capability of the Board

Videoconferenced

Personal

Hearings

11
member conducting the hearings by reducing travel time -the Board member is able

to move down the hall, literally, instead of traveling across the country to conduct a

hearing. Forty-eight videoconferenced hearings were conducted during FY 1996.

In addition to reinforcing the validity and practicability of conducting hearings by

videoconference during Fiscal Year 1996, the Board demonstrated the tremendous

potential of this medium as an effective training vehicle. Throughout the year, Board

members in Washington, DC, and adjudicators at the VA regional office in Des Moines,

IA, discussed recently decided cases, explained rationales for decisions, and discussed

the impact of recent Court opinions.

Videoconferenced training provides a real-time alternative to the more typical

classroom training environment, allowing "face to face" information exchanges without

the cost or, more importantly, the time required to travel from geographically distant

locations. The potential for videoconferencing as a training tool that was demonstrated

during FY 1996 is such that the Board plans to install videoconferencing equipment in

up to 12 additional regional offices during FY 1997. In addition to the convenience and

benefit to appellants afforded by videoconferenced hearings, it is reasonable to expect

an appreciable reduction in BVA remands as a direct result of the videoconferenced

training that will be held.

Videoconferenced

Training

The Board expanded its efforts to provide infomlation to appellants about BVA and

the service they can expect to receive from the Board. During FY 1996, the Board

established a series of World Wide Web (WWW) pages that provide appellants and

other "visitors" the ability to obtain answers to many questions about the appeal process.

This on-line version of BVA's pamphlet, "Understanding the Appeal Process," links

plain language answers to numerous commonly asked questions. These WWW pages,

like the pamphlet from which they were derived, were updated in April 1996 to reflect

suggestions submitted by BVA customers on how this product might be improved.

"Understanding the Appeal Process" is available on the WWW at the following Universal

Resource Locators (URL):

World

Wide

Web

http//www. va.gov/appeals/index.htm

Board decisions issued in calendar years 1994 and 1995 have also been made available

in searchable text format through VA's Web pages. The URLs for these decisions are:

~!lRL

1994 http://www.va.gov/vetapp/vetindex.htm

1995 http://www.va.gov/vetapp95/vetindex.htm

Since March 1996, the Board has provided a mechanism for WWW visitors to submit

questions directly to the Board by electronic mail (e-mail). Nearly 100 e-mail inquiries

were received and answered in FY 1996 in the approximately six months this service

was available. Based on its increasing rate of use, the Board anticipates that 300 or

more e-mail inquiries may be received from its WWW pages in FY 1997.

12
Previous customer service initiatives included notifying appellants in writing when

their appeals are docketed; providing accurate timeliness estimates to appellants;

providing appellants with information on what kind of service to expect; providing a

"user friendly" explanation of the appeal system; and establishing an appeal status inquiry

telephone line.

CLAIMS FILE SECURITY

In FY 1993, Board members detected unusual patterns of decision recommendations

prepared by two staff attorneys. In each of these apparently unrelated cases, the attorneys in question recommended that an unusually high percentage of appeals be remanded

to VA regional offices to obtain essential documents. The reviewing Board members

suspected that the two attorneys, Lawrence Gottfried and Jill Rygwalski, were altering

documents in or removing records from appellants' files, thus necessitating the return

of the appellants' claims folders to VA regional offices for further development.

Investigations undertaken by the VA Office of Inspector General, at BVA's request,

revealed evidence that the two suspect attorneys had tampered with documents from

some claims files assigned to them for review. Based on evidence uncovered in the

course of the investigations, the U.s. Attorney's Office for the District of Columbia

pursued criminal charges against both attorneys. In January 1995, attorney Lawrence

Gottfried was sentenced to 15 months imprisonment and ordered to pay $39,931 in

restitution to the Board, based on his guilty plea to a felony charge of unlawful concealment, removal, and mutilation of government records. Gottfried appealed the sentence.

However, in June 1995, the Court of Appeals for the District of Columbia upheld the

sentence in a precedential decision. Subsequently, in September 1995, attorney Jill

Rygwalski was sentenced to a prison term of 15 months and ordered to pay restitution in

the amount of $22,461, following her guilty plea to the same offense. Both attorneys

are barred from future employment with the Federal government and both face disbarment proceedings in the jurisdictions in which they are licensed to practice law.

Mter discovering the tampering, the Board initiated a systematic review of the approximately 2,200 decisions handled by the two attorneys since 1988, to identify those

in which tampering may have occurred. In FY 1996, the Board completed the notification of all appellants whose cases were handled by the two attorneys and informed them

of the results of the review. In all cases, whether the Board's review revealed evidence

of tampering or not, appellants and their representatives are afforded the opportunity to

personally review their records and, if they suspect tampering, to provide information

about missing or altered documents or take other appropriate action. In addition, in FY

1996, the remaining original and restored files in almost all cases that were held as

evidence in the criminal cases against these two attorneys were reintegrated into the

system and adjudicated.

13
Corrective actions available to appellants include the submission of additional or

duplicate evidence, as well as comments or arguments, and, if a final decision was made

on an incomplete or altered record, filing a motion for reconsideration. Cases involving

file tampering will be handled in an expedited manner and will be subject to the same

standard of review as applied to cases involving the destruction of official records that

occurred in the 1973 fire at the National Personnel Records Center in St. Louis, Missoun.

While the Board has no indication that any other employees tampered with official

records, the damage done by these two attorneys was considerable. In most instances,

the tampering resulted in further delay in an already too lengthy appeal process. The

short-term effect on the Board has been substantial in terms of time and costs expended

to investigate and correct this matter and in terms of the perceived loss of integrity of

the Board's appellate procedures. Long-term effects are still not known. However, the

more precise monitoring of appellate records made possible by the FY 1995 upgrade of

the Board's computerized case tracking system, along with the possible future implementation of document imaging technology, should reduce or eliminate the likelihood

of any recurrence of this problem.

Although this incident is perhaps the most troubling aberration in the Board's 63

year history, it must be remembered that it was the expertise of Board members that

resulted in these crimes being discovered and the perpetrators brought to justice.

LEGISLATIVE INITIATIVES

Representation for many appellants is provided by one of the various veterans' service

organizations, many of whom are provided office space by the Department, both in

regional offices and at the Board's office in Washington, DC. Over the years, the Board

developed efficient, cost-effective methods of notifying both claimants and their

representatives of decisions on appeal. For example,

0 Decisions were and are

mailed directly to claimants and

to representatives whose offices

are not located at VA facilities.

0 In the cases of

representatives who are located at

regional offices, the Board would

deliver decisions to the VA

mailroom, which "bundled" mail

for the 58 regional offices and

then delivered that mail to the

Individual decision team and Board-wide perfonnance

statistics are posted throughout BVA's work area,

allowing employees to evaluate the Board's progress

toward meeting its productivity goals.

14
u.s. Postal Service one or more times per week. Upon delivery to the appr(\priate

regional office, that office's internal mail distribution system would deliver a copy of

the decision to the representative.

0 In the cases of representatives who are located at the Board's Washington office,

copies of decisions were hand-delivered by the Board's internal mail distribution service.

In Trammellv. Brown, 6 Vet. App. 181 (1994), the Court ruled that 38 V.S.C. § 7104(e)

requires the Board to mail its decisions directly to the representative, and that a process

\\'hich routed that decision to a regional office for distribution -even when the

representative was physically located at the regional office -was not acceptable. In

Davis v. Brown, 7 Vet.App. 298 (1995), the Court interpreted the words "the Board shall

promptly mail" in section 7104(e) to mean that the Board decision "must be correctly

addressed, stamped with proper postage, and delivered directly by the [Board] into the

custody of the V.S. Postal Service." While both of these decisions are reasonable

interpretations of the statute, this approach created problems with logistical solutions

the Board developed over the years to deal with notification of parties and their

representatives. In addition to adding postage cost and considerable administrative

burden, this process delayed delivery of decisions to many representatives, especially in

the case of representatives located, quite literally, within 100 feet of the BVA office

sending the decision.

Providing Copies

of Decisions to

Claimants and

Representatives

The Department submitted proposed legislation that would permit the Board to "send"

its decisions to claimants and their representatives by any means reasonably calculated

to provide a copy of the decision within the same time frame that a copy of the decision

sent by first-class mail would be expected to reach them. At the Department's request,

Senator Alan K. Simpson, Chairman of the Senate Committee on Veterans' Affairs,

introduced the proposal as part of S. 1751. Following hearings, the substance of the

measure was incorporated into § 508 of the "Veterans' Benefits Improvements Act of

1996," Pub. L. No. 104-275, 110 Stat. 3322 (Oct. 9, 1996).

In addition to having an

extensive knowledge of

veterans' law, Board

members and staff counsel

must also develop expertise

in medical and other subject

areas. A wide variety of

computerized research

materials assists decision

preparation.

15
Recent Court rulings have called into question the Department's long-standing practice

of permitting veterans' service organizations (as opposed to individual service officers)

to function as claimants' representatives. This practice has permitted veterans and their

families to rely on numerous highly-trained, accredited representatives at all levels of

the claims process -from County Veterans' Service Officers, through representatives

at regional offices and hospitals, to veterans service organization staff co-located with

the Board of Veterans' Appeals -and in all regions of the country simply by designating

an accredited service organization as their representative. However, in Leo v. Brown, 8

Vet.App. 410 (1995), the Court ruled that, where the veteran had listed "The American

Legion, Greenville County Veterans Affairs Office" as his representative, mailing a

copy of the Board's decision to the national office of The American Legion did not

satisfy the requirement to mail a copy of its decision to the appellant's representative.

Organizational

Representation

In October 1995, the Department submitted to the Congress, legislation designed to

eliminate any confusion about the right of a claimant to appoint a veterans' service

organization as representative. The proposed legislation authorized the Secretary to

treat a power of attorney naming an organization, a specific office of an organization, or

a recognized representative of an organization as appointment of the entire organization.

Claimants would, however, retain the right to specify that only a specific, named

individual be recognized as representative.

In May 1996, at the Department's request, Senator Alan K. Simpson, Chairman of

the Senate Committee on Veterans' Affairs, introduced the proposal as part of S. 1751.

Following hearings, the substance of the measure was incorporated into § 509 of the

"Veterans' Benefits Improvements Act of 1996," Pub. L. No. 104-275, 110 Stat. 3322

(Oct. 9, 1996).

SELECTION OF BOARD MEMBERS

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

1994, no physicians have served as members of the Board. The selection process for

the limited number of Board member openings is extremely competitive -candidates

must be completely familiar with the ever growing body of applicable statutory,

regulatory, and judicial authority and must acquire a solid background in numerous

subject areas, including medical matters, necessary to adjudicate the wide variety of

claims within the Board's jurisdiction. With very few exceptions, Board members have

been selected 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 qualified for consideration as a Board member.

Only individuals who have the requisite level of expertise to provide the efficient,

high-quality service that veterans and their dependents deserve are selected. As selection

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

is never a factor for consideration.

16
MEMBERS OF THE BOARD OF VETERANS' APPEALS

At the close of FY 1996, the following 55 individuals, 30 of whom are veterans,

were serving as members of the Board of Veterans' Appeals. At the close of FY 1996,

no Board member appointments were awaiting Presidential approval. There are no

physicians serving as Board members.

AGUAYO-PERELES, JOAQUIN MOEHLMANN, HOLLY E.

(DEPUTY VICE CHAIRMAN) MONROE, JACQUELINE E.

ANDREWS, KENNETH R., JR. O'NEILL, EUGENE A.

ANTHONY, JAMES R. ORMOND, JOHN E.

BAUER, ROGER K. PELLETIER, RENEE M.

(VICE CHAIRMAN) PHILIPP, ROBERT D.

BLASINGAME, JACK W. PHILLIPS, NANCY I.

BRAEUER, WAYNE M. POWELL, URSULA R.

BROWN, DEREK R. REDDY, WILLIAM J.

CALLAWAY, BE1TINA S. RICE, WARREN W., JR.

CHEEK, MICHAEL D. ROBIN, NANCY R. .

COHN, STEVEN L. (DEPUTY VICE CHAIRMAN)

COPELAND, BARBARA B. RUSSELL, CRAIG P.

CRAGIN, CHARLES L. SABULSKY, MARY M.

(CHAIRMAN) (DEPUTY VICE CHAIRMAN)

DANNAHER, THOMAS J. SCHWARlZ, HOWARD N.

DAY, JONATHAN E. SENYK, GEORGE R.

DURKIN, SHANE A. SHARP, JANE E.

FLOWERS, FRANK J. SHERMAN, IRIS S.

FRANK, RICHARD B. SHUFELT, GORDON H.

GALLAGHER, MARY SPICKLER, DAVID C.

GICK, GARY L. STANDEFER, RICHARD B.

GOUGH, JEROME F. (SENIOR DEPUTY VICE

HOGEBOOM, CHARLES E. CHAIRMAN)

(DEPUTY VICE CHAIRMAN) SULLIVAN, LAWRENCE M.

HYMAN, BRUCE E. SULLIVAN, ROBERT E.

JORDAN, VICKY L. SYMANSKI, CHARLES W.

KANNEE, BRUCE N. TOBIAS, CONSTANCE B.

KELLER, STEVEN L. TOBIN, LEO W., ill

KRENZER, EILEEN M. TUTERA, ALBERT D.

LYON, MICHAEL D. WILKINS, STEPHEN L.

MARTIN, JEFFREY J.

The body of veterans' common

law developed since judicial

review began now fills eight

bound volumes.

17
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alCCCCC
THE EVOLVING ROLE OF THE BVA PHYSICIAN

The Court has issued a number of opinions that have altered the manner in which

BVA physicians are employed in the decision-making process by eliminating their

traditional role as adjudicators. In the cases of Gilbert v. Derwinski, I Vet.App. 49

(1990), Colvin v. Derwinski, 1 Vet. App. 171 (1991), and Hatlestad v. Derwinski, 3

Vet.App. 213 (1992), the Court held, in essence, that the Board could no longer base its

decisions on its own medical expertise, including that of physicians then serving as

Board members. In Colvin, the Court held that the Board must consider only independent

medical evidence to support its findings rather than provide its own medical judgment

as a Board opinion. After Colvin, the Board utilized BVA physicians as medical advisers,

in which capacity they provided expert medical opinions "on the record" in appeals in

which such guidance was required. However, in Austin v. Brown, 6 Vet.App. 547 (1994),

the Court raised serious questions concerning the fairness and impartiality of the Board's

procedures for utilizing Board medical advisers' opinions. Since announcement of Austin,

the Board has not utilized opinions from its medical advisers in adjudicating appeals.

In August 1995, the Court issued an opinion that further defined the status of BVA

medical advisers' opinions in the claims adjudication process. In Williams v. Brown,

8 Vet.App. 133 (1995), the Court held that, before any use is made of the BVA medical

adviser's opinion on remand, the Board must answer the series of questions posed by

the Court in Austin. A similar result was reached in Perry v. Brown, 9 Vet.App. 2 (1996).

As a practical matter, these questions pose a complex procedural hurdle which, absent a

change in the law, make it unlikely that the Board will return to its former practice of

utilizing the opinions ofBVAmedical advisers in adjudicating future appeals.

Medical

Opinions

and Research

The absence of medical members within BVA decision teams has significantly

increased the amount of time staff attorneys must spend conducting medical research.

Staff attorneys must be able to recognize when the need for an expert medical opinion is

warranted to fully develop a record. Board members must analyze medical evidence

with increased frequency and sophistication and provide a thorough explanation of all

medical principles upon which their decisions rely, with discussion of and citation to

independent authority, such as medical treatises, texts, journals, and epidemiological

studies. The resources of the Board's Research Center have been greatly expanded to

help meet this need.

The Board increasingly has been required to obtain additional medical information

and/or expert opinion on the record from sources within and outside the Department.

The Board continues to seek advisory medical opinions from the Armed Forces Institute

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

of leading medical schools. In FY 1996, the Board requested 91 opinions from

independent medical experts under 38 U.S.C. § 7109. The Board also continues to seek

advisory medical opinions from VA sources, including the Under Secretary for Health.

In addition, the Board and the Veterans Health Administration (VHA) have entered into

an agreement whereby BVA may obtain advisory medical opinion services from VHA

19
and physicians who conduct compensation and pension physical examinations. In 1996,

the Board requested approximately 143 such opinions from VHA. Also in 1996, the

Board requested 9 opinions from the Armed Forces Institute of Pathology.

As a result of these changes, the Board now utilizes its remaining (two full-time and

three part-time) physician staff in other capacities. BVAstaffphysicians actively provide

informal advice of a general and educational nature to staff counsel and Board members.

They each conduct two medical lectures per month, covering topics such as examination

and laboratory results, scans and other diagnostic procedures, orthopedic examinations,

and basic examination procedures. BVA physicians also review the Board's requests

for VHA and outside medical advisory opinions to ensure accuracy in the way in which

the evidence is reported and the questions are framed.

ATTORNEY AND AGENT FEE AGREEMENTS

The VJRA required attorneys and agents to file with BVA their fee agreements for

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

BVA the authority to review fee agreements on its own motion or upon motion of a

party to the agreement.

In FY 1996, the Board received nearly 370 fee agreements for filing and review, an

increase of 48% over FY 1995. Most problems concerning fee agreements were handled,

as in the past, through correspondence with attorneys. Under the authority of 38 C.F.R.

§ 20.609(i), the Board issued three motions for Board review of fee agreements, and

three were filed by attorneys. At the end of the fiscal year, six motions were pending. In

four cases, the Board issued decisions that the attorney could not charge a fee. Two

motions were deferred.

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

referred by VA regional offices for a determination of whether an attorney is eligible for

payment directly by VA under 38 U.S.C. § 5904(d). In FY 1996, fifty-five cases were

referred for such decisions. Fifty-seven such cases were completed during the fiscal

year: 39 ordered payment to the attorney, and 18 held that the attorney could not be

paid.

REPRESENTATION BEFORE THE BOARD

In FY 1996, 84.6 percent of appellants were represented by one of the accredited

service organizations, 3.5 percent were represented by an attorney or agent, and 11.9

percent were not represented. In FY 1995, 87.3 percent were represented by an accredited

service organization, 3.2 percent were represented by an attorney or agent, and 9.5 percent

were not represented. (See table on page 42, Part III.)

20
LIAISON ACTMTIES

Throughout the year, the Chaimlan made presentations to members and staffs of the

Committees on Veterans' Affairs of the Senate and House of Representatives and of the

Subcommittee on VA, HUD, and Independent Agencies of the House and Senate

Committees on Appropriations concerning the backlog of appeals and the Board's

initiatives to increase productivity and improve decision timeliness. One of the key

elements of these presentations was the reduction in response time due in part to the

Board's realignment into "decision teams."

Congressional

Liaison

Activities

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

on Compensation, Pension, Insurance, and Memorial Affairs of the House Committee

on Veterans' Affairs; the Senate Committee on Veterans' Affairs; and the Subcommittees

on VA, HUD, and Independent Agencies of the Committees on Appropriations of the

Senate and House of Representatives, both on the Board's budget needs for FY 1997

and the Board's legislative proposals.

The Chairman provided an in-depth briefing on the appeal process to the National

Association of Public Administrators (NAPA), which is conducting a review of the

entire VA claims and appeal adjudication process. The Board also provided NAPA with

statistical and historical information. The group is scheduled to issue its report in

FY 1997.

Government

Studies

Liaison

The Veterans' Claims Adjudication Commission, which has also been examining the

entire claims processing system, including the Board, was originally scheduled to issue

its final report in May 1996, but had its charter extended and had not issued its report as

of the end ofFY 1996.

The Honorable G. \I:

"Sonny" Montgomery,

former Chairman of the

House Veterans Affairs

Committee, visited Board

employees and received a

certificate from the

Chairman in appreciation

of his nearly 30 years of

service in the House of

Representatives and his

dedication to serving

veterans.

21
Veterans' service organizations are vital to the Board's operation and provide an

invaluable service to appellants. However, the Board's vast improvement in productivity

over the last two fiscal years -a 54 percent increase in decisions issued in FY 1996,

compared with FY 1994 -resulted in a perplexing and as yet not fully resolved dilemma.

Veterans'

Service

Organization

Liaison

Part of the service organization representation activities is the preparation of advocacy

briefs, which is perfomled prior to the Board's review. These representative briefs

become part of an appellant's record and are considered by the Board when reviewing

appeals. Unfortunately, advocacy brief production by some VSOs has not kept pace

with the Board's increased decision production rate. While most service organizations

have made significant progress toward attaining an adequate level of brief production,

and some have exceeded that required to maintain parity with the Board, the failure of

others to meet this challenge began to adversely impact BVA's productivity during the

final quarter of FY 1996. Unless the service organizations, especially those providing

the majority of representational services, respond with adequate resources to address

this situation, the Board could fall short of its FY 1997 productivity goals. However,

the Board is confident that all service organizations will eventually dedicate the resources

necessary to increase their brief production to requisite levels.

Case Flow

Constriction

Throughout the year, the Chainnan made presentations to representatives of numerous

veterans' service organizations, both at the Board's offices and at various conventions

and training conferences. The Chairman addressed or participated in more than a dozen

conventions and seminars held by VSOs (both national and state) across the country,

including the National Association of State Directors of Veterans Affairs annual and

mid-Winter conferences, and the Disabled American Veterans national convention.

The Chairman served as the senior Department official at numerous patriotic

ceremonies and observances and addressed numerous other interested groups, including

the American Bar Association Veterans Benefits Committee and the Fourth Judicial

Conference of the United States Court of Veterans Appeals. The complete text of the

Chairman's remarks to the Court's judicial conference is contained in Part n of this

report.

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

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

are handled by the Office of the Chairman and the decision team administrative units.

The Chairman also responded to correspondence from numerous claimants and other

interested parties addressed to the President, the Secretary, and other government officials

and provided written responses to 2,575 Congressional inquiries in FY 1996. FY 1996

was the second consecutive year in which the number of such inquiries decreased by

more than one-third the number of inquiries received during the previous year. Anecdotal

evidence suggests that this decrease is a result of two of the Board's FY 1995 customer

service initiatives, specifically, the practices of informing appellants in writing how

Correspondence

22
long a wait they can expect before the Board issues its decision in their cases and of

providing them the pamphlet, "Understanding the Appeal Process," which answers many

of the most frequently asked questions about the Board's operation and procedures.

PROFESSIONAL TRAINING

The Board continued its intensive training program for attorney staff and Board

members during FY 1996. Under the direction of the Vice Chairman, a committee of

key personnel acting as a "Board of Regents" developed and implemented a training

program using a university model. Its Charter was set as follows:

Development of a well trained and highly motivated professional

service is central to increasing productivity. The purpose of the

Board of Veterans' Appeals' Training Committee is to establish

new procedures and refine existing methods for providing initial

and continuing legal, medical, management, and other education

and training for Board members and staff counsel. Improved

education and training of the Board's judicial and attorney staff

will better enable the BVA to accomplish its mission to enter

timely, consistent, and high quality appellate decisions on behalf

of the Secretary.

BVA's professional staff continued to grow

at a tremendous rate. In FY 1996 alone, the

Board realized a net increase of 65 staff

counsel. Sixty-seven new staff counsel were

hired during the previous fiscal year. It should

be noted, however, that because of the

complexity of today's veterans' law

environment, these new counsel require

intensive training before they can become

fully contributing decision team members.

Expanding

Staff of

Board

Attorneys

Newly hired attorneys begin their

participation in the professional training

program on their first day of orientation at

the Board. The program, developed in

cooperation with the employees' bargaining

unit, includes intensive instruction in a variety

of functional areas, including appeals

development and adjudication, veterans' law,

the hearing process, medical issues, and

computer word-processing techniques. The

Employees receive extensive training

throughout the year on a wide range

of subjects, including legal, medical,

and administrative topics.

23
curriculum includes mentor assistance, the use of a uniform training guide, legal and

medical lectures, and training in the use of on-line reference resources, discussed in the

following section.

The training program provides for professional growth and skill development

throughout the course of an attorney's career with the Board. A nonlinear progression

through a wide variety of class offerings is taken so that attorneys, together with their

supervisors, can evaluate individual educational needs and, based on those evaluations,

participate in classes addressing those areas determined to be most beneficial to each

employee. Although much of the training is provided by Board staff members, additional

resources are used to augment the curriculum, as appropriate. Maintaining a customer

service outlook and awareness are key elements of the training program.

To broaden their understanding of the veterans' benefit claim process, more than 40

BVA attorneys attended a two-day seminar at the Veterans Benefits Administration's

Adjudication Academy in Baltimore, MD, in July 1996. Developing a familiarity with

and understanding of regional office claims adjudication processes by Board counsel

directly supports the Department's "one VA" efforts.

Intradepartmental

Training

Another "one VA" effort took place in September 1996, when 48 Board members

and staff counsel traveled to numerous VA regional offices around the country. These

visits afforded an opportunity for BV A staff members to provide instructional assistance

and training to adjudication personnel, to answer questions about specific issues, and to

explain the impact of various Court opinions on B VA remands and decisions. The goal

of these sessions was to help reduce the number of appeals remanded to regional offices

by the Board for additional development and for Board members and counsel to gain

greater insight into adjudication operations at the regional offices.

During FY 1996, the Board and VA's Office of the General Counsel (OGC) established

an exchange program that allows the detailing of attorneys between Board staff counsel

and the OGC staff group that represents the Secretary before the Court of Veterans

Cooperative

Efforts

BVA attorneys attended a two-day seminar at the Veterans Benefits Administration's

Adjudication Academy in Baltimore, MD, during FY 1996. Numerous trainingfacilities

and opportunities, both internal and external to VA, are employed to provide a broad

range of training to Board employees.

24
Appeals. This cross-training presents an opportunity for attorneys from both

organizations to broaden their individual career experiences and to further VA's efforts

to improve intradepartment~ cooperation.

Additional 

intradepartmental programs in which BVA participates include: External

Training

Opportunities 0 VBNCompensation and Pension (C&P) Service "hot line" conference calls with

all VBA adjudication officers to discuss, among other topics, appellate and/or Court

related issues;

0 Development of an interactive C&Pexaminers' training film on CD-ROM, which

is being produced by VBA and VHA;

0 Automated Medical Information Exchange system conference calls involving

VBA and VHA;

0 C&P examination task force

Highly motivated Board employees who have demonstrated the potential to assume

positions of greater responsibility are afforded the opportunity to broaden their personal

and professional perspectives through participation in Leadership VA (LVA). LV A is an

intensive leadership training experience that also provides participants the opportunity

to gain insight into the myriad of internal and external forces affecting the department.

RESEARCH MATERIALS

The Board's centralized Research Center contains reference materials most frequently

used by Board attorneys, including videotapes of topical lectures and traditional library

materials, such as current legal and medical texts. Legislative and regulatory histories

are also available. The Research Center is used in conjunction with the extensive General

Counsel and Veterans Health Administration libraries. Other departmental and

governmental research resources are available as well, including those of the Veterans

Benefits Administration's Adjudication Academy, the Office of Personnel Management

schools and the National Judicial College.

On-Line

Research

Tools

The Board's commitment to automating as many of its processes as practicable has

resulted in a personal computer being provided to every staff counsel, Board member,

and member of the professional and administrative staff. A variety of applications and

productivity aids are available for all BVA staff and VSO appeals representatives

connected to the Board's computer network, as are a significant number of automated

reference materials ("research tools"). This material is accessible through a computer

selection menu that facilitates conducting sophisticated legal and medical research from

an individual's workstation. Training has been provided to familiarize staff counsel and

Board members with the resources available, the steps necessary to access the desired

25
information, and formulation of search "queries." Anecdotal reports from new staff

counsel indicates that the volume and sophistication of electronic research and reference

materials readily available to BVA staff counsel and Board members far exceeds that

which is normally found in the private law sector.

The Board's on-line research tools fall into three broad categories: indexes, text files,

and miscellaneous. Indexes are used to ascertain the availability and location of

information on different subjects. The VADEX (VA Index), for example, is analogous

to a card catalogue and contains references to VA-generated documents that are relevant

to the mission of the Board. Indexes of VA Office of the General Counsel opinions and

Chairman's numbered memoranda are also available.

Indexes

The Index of Veterans' Benefits Law (Annotated), which was created to facilitate

legal research and assist with the preparation of Board decisions, includes annotated

references to precedent decisions and opinions of the U.S. Court of Veterans Appeals,

U.S. Court of Appeals for the Federal Circuit, U.S. Supreme Court, and VA's Office of

the General Counsel. It is available not only to Board employees and veterans' service

organization representatives connected through the Board's computer network, but has

also been distributed by the Veterans Benefits Administration's Compensation and

Pension Service to adjudicators in all 58 VA regional offices. This asset allows staff

counsel, Board members, and others to keep abreast of the burgeoning and dynamic

body of veterans' benefits law.

Text Files containing the text of documents are a useful source of both primary

information and blocks of text that can easily be transferred into draft decisions. Text

files include: slip opinions of the U.S. Court of Veterans Appeals (1990 to the present);

BVA decisions since 1992; precedent opinions of VA's Office of the General Counsel

since 1993; Chainnan' s numbered memoranda since 1991; Title 38 of the Code of Federal

Regulations (updated monthly); the Physicians' Desk Reference containing

pharmaceutical product descriptions and information about drug interactions and side

effects; and the Merck Manual, a quick reference manual for most common diseases.

Text Files

BVA's staff counsel and

Board members have

access to an extensive

array of computerized

research materials. The

Boards Research Library

also contains a large

selection of legal and

medical texts.

26
Also included in the text files are several VBA Administrative items, including VBA

Directives and VBA Training Guides and Manuals.

Miscellaneous research tools and training materials are prepared and updated by BV A

personnel. Research tools included in this category are: "headnotes," summaries of

selected opinions of the V .S. Court of Veterans Appeals; information concerning military

awards and decorations; discussion of attorneys' and agents' fees under

38 V.S.C. § 5904; and medical abbreviations. Training materials include the BVAtraining

guide and information on hearing loss disability, tinnitus, and neurology.

Other

Research

Materials

In February 1994, traditional indexing was discontinued in favor of making the highly

searchable CD-ROM (Compact Disc -Read Only Memory) available to the public. All

Board decisions issued in calendar years 1992 through 1995 are available for purchase

from the Government Printing Office on two CD-ROMs. The text of decisions issued

in 1992, 1993, and 1994 (Stock No. 051-000-00207-5) are contained on one CD-ROM

and the text of 1993,1994, and 1995 decisions (Stock No. 051-000-00210-5) on another.

Included on each of BVA's decision CD-ROMs is an index to decisions issued between

1992 and February of 1994 and a vocabulary list that facilitates searches for specific

topics. Users can then display and print their search results. This capability represents

an enormous potential reduction of research time for attorneys preparing decision

recommendations, appeal representatives preparing advocacy briefs, and others interested

in the appeal process. Additionally, as discussed on page 12, all Board decisions issued

in calendar years 1994 and 1995 are available in searchable text format on the Internet

through VA's World-Wide Web pages.

A major upgrade and revision to the Veterans Appeals Control and Locator System

(VACOLS) -BVA's core data base system providing case tracking, statistical reporting,

and management information system support -was completed late in FY 1995. The

greater flexibility and faster reporting of the new system allows the Board to add new

features and more sophisticated applications to enhance individual and organizational

productivity.

Historically, VBA and BVA have used completely independent computer systems to

track appeals, VBA using the Appeals Tracking System CATS) and BV A using V ACOLS.

Working together during FY 1996, VBA and the Board took a major step toward

consolidating the two systems. The Chairman and the Under Secretary for Benefits

have signed a Memorandum of Understanding to establish a unified information system

for tracking, processing, and otherwise managing appeals in all of their phases and

locations throughout the VA system.

Unified

Appeals

Tracking

System

VACOLS, modified to accommodate VBA requirements, will serve as the core for

this single appeals tracking and reporting system,which will eliminate redundant

procedures, provide immediate availability of precise appeal status information by all

27
adjudication personnel regardless of case folder location, increase case folder

accountability, and improve workload management. New computer applications designed

for this purpose were field tested by regional office personnel in St. Petersburg, Baltimore,

Milwaukee, Oakland, and Winston-Salem during the latter part of FY 1996, and will be

installed at all regional offices early in FY 1997.

This joint venture allows regional office personnel to obtain lists of cases called up

for review by B VA, query and update the appeal data base regarding the status of those

call-up cases, and directly update the system when an action on an appeal has been

completed. This cooperative initiative will benefit veterans and their families by

providing increased efficiency within the Department's adjudication system and improved

responsiveness to their needs.

CUSTOMER SERVICE

The Board continued its active participation in the Department's effort to improve

the quality of service to customers. In addition to the many initiatives aimed at improving

timeliness discussed throughout this report, the Board has made great strides in improving

the quality and frequency of its communication with appellants. The Board notifies

appellants by letter when their appeals are docketed. This letter, written in clear,

nontechnical language provides appellants with an estimate of how long it is likely to

take before their cases will be reviewed and decided. Included with this letter are two

pampWets, one describing BVA's customer service standards and commitment to

improving its service to appellants, the other, "Understanding the Appeal Process," is

discussed in the following paragraph. The Board also informs appellants when certain

significant developments occur in the processing of their appeals, such as a request for

an independent medical opinion.

Deputy Secretary Hershel Gober presents the Scissors Award

to BVA 's Decision Team II for its performance during the first

six months of FY 1996.

28
The publication and distribution of "Understanding the Appeal Process," which

explains the claims appeal process in detailed, yet easy to understand language, has

proven to be one of the most useful customer service improvements initiated to date. In

addition to describing the steps involved in the filing and processing of an appeal, the

pamphlet provides suggestions on things appellants can do to avoid delays and to make

their appeal as complete as possible. It also provides an explanation of additional appellate

rights and a phone number, established exclusively for this purpose, that appellants can

call to learn the current status of their appeals.

Understanding

the

Appeal

Process

Both the "Customer Service Standards" and "Understanding the Appeal Process"

pamphlets are mailed to appellants within 30 days of the docketing of their appeals.

The latter publication has also been distributed to all VA regional offices and medical

centers, VSO headquarters, and has been made available to state and local veterans

departments. Both of these items are also available on the World Wide Web, as discussed

on page 12.

While difficult to state with absolute certainty, these customer service improvements

likely contributed to the 56 percent decrease in appellant inquiries submitted to the

Board by Congressional offices in FY 1996, compared with FY 1994, prior to their

introduction.

Viewing appellants as customers and serving them with courtesy, respect,

understanding, and professionalism 100 percent of the time has been continuously

emphasized throughout all facets of the Board's operations. This standard has been

adopted, not just as the norm, but as .the only acceptable way of doing business.

The Board conducted its second customer satisfaction survey during FY 1996. Those

surveyed included appellants whose appeals have not yet been decided, those whose

appeals were allowed, and those whose appeals were denied. Although responses tended

to be more favorable overall among those whose appeals had not yet been decided or

had been allowed, dissatisfaction with the length of the process was fairly universal.

One encouraging outcome of the survey was that more than 4 out of 5 respondents from

all categories indicated that the Board had provided a complete and understandable

explanation of the appeal process.

Customer

Surveys

SCISSORS AWARDS

In recognition ofBV A's dramatic improvement in productivity during FY 1996, Deputy

Secretary Hershel Gober presented two "Scissors Awards" for the Board's efforts to

"reinvent government and improve customer service by cutting red tape and creating an

organization that works better and costs less."

29
Decision Team I earned a

Scissors Award by becoming

the Board's top decision

producing team during BVA's

first year of operation under

its realigned organizational

structure. Team Iissued more

than 8,900 decisions, leading

all teams in FY1996.

In April, 1996, Decision Team n was presented a Scissors Award for leading BVA's

decision teams in productivity during the fIrst six months ofFY 1996 by issuing 3,957

decisions -more than 500 over the decision production goal established for each of

the Board's four teams. Fewer than 100 decisions separated the top two teams and only

a 10 percent difference in decisions issued separated the fIrst and last place teams over

the six month period considered for this award.

Decision Team I earned its Scissors Award for being the top decision producing t~am

for all of FY 1996. Team I issued 8,917 decisions for the year, exceeding the individual

team goal of 8,063 by more than ten percent. The four decision teams were so close in

performance that only a 2.5 percent difference in productivity separated the four decision

teams.

While all BVA employees can feel justifiably proud of their remarkable

accomplishments during FY 1996, the real "winners" are the Board's customers -

veterans and their families. By increasing productivity and reducing response time,

BVA's employees are improving the service they provide to appellants, which is what

"Putting Veterans First" is all about.

The cover of this year's

Report of the Chainnan

honors veterans of the

Vietnam War:

This photograph of the

Vietnam Memorial

at dawn, with the

Washington Monument

reflected in the

background,

was taken by

Michael Moore.

Additional photographs

within this report were

taken by VA

photographers

Robert P. Turtil,

Michael Moore,

and Emerson Sanders.

30
PART n

REMARKS OF THE CHAIRMAN

AT THE FOURTH JUDICIAL CONFERENCE

OF THE

UNITED STATES COURT OF VETERANS APPEALS

SEPTEMBER 1996

The Chainnan was invited by the Court to address the Fourth Judicial Conference of

the United States Court of Veterans Appeals on September 17, 1996. The Chainnan

provided a historical overview of significant challenges faced by the Board of Veterans'

Appeals since the advent of judicial review and discussed how the Board has met those

challenges. The full text of the Chainnan's address is presented below, with section

headings added to facilitate review.

INTRODUCTION

As I approach the end of my six year term as the flfst Presidentially appointed,

Senatorially confirmed, Chairman of the Board of Veterans' Appeals, I am grateful for

this opportunity to reflect on where we have been and where we may be going as an

institution.

mSTORICAL OVERVIEW

The Board of Veterans' Appeals has undergone more significant changes in roughly

the past six years than in its entire history. The Veterans' Judicial Review Act (VJRA)

and other significant legislative changes, the advent of judicial review of VA benefits

decisions and the evolving "veterans common law" of precedent decisions of the U.S.

Court of Veterans Appeals and other Federal Courts, have drastically changed the way

the VA does business.

The changes have been sudden, radical, and frequently erratic. The challenges wrought

by these changes have been monumental. I am pleased to report that the Board of

Veterans' Appeals is meeting these challenges. While we are not there yet, we have

come a long way in accomplishing our mission of producing consistent high quality

decisions in a timely manner. I am proud of my continuing association with the

approximately 500 individuals who collectively enable the Board to put veterans flIst. I

am proud of the vitality and resiliency of this organization and its people.

31
When I fIrst arrived at the Board in October 1990 as a consultant to the Secretary, the

impact of the decisions of the newly created Court of Veterans Appeals was just beginning

to be felt. Moreover, given the rapid evolution of "veterans common law" during the

early years of the Court, it was very difficult for our Board members and counsel to

know what was expected of them.

The

New

Court

Throughout its history, the Board functioned as a panel of experts, applying its own

legal and medical expertise to fairly and expeditiously decide appeals. Each section of

the Board included a medical member -a physician -whose medical judgment often

controlled the outcome of an appeal. As we now know, the Court's decisions rather

quickly changed this method of appeals adjudication. While some may have foreseen

such change as inevitable, many in '1 A and in Congress did not.

As you can imagine -and, as some of you can remember -the fundamental changes

in the way the Board did business had the effect of dislocating many of our personnel,

both intellectually and physically, particularly the physician Board members who were

not reappointed to the Board after their initial terms expired.

The expanded "reason or bases" requirement of the VJRA, the expanded "duty to

assist" as defined by the Court, expanded due process requirements and constantly

evolving case law resulted in the need for more formal, complex and lengthier Board

decisions. The Board's challenge was to gradually rebuild and revitalize itself as an

organization. We immediately began a continuing process of critical reexamination of

how to best accomplish our mission in this new and ever-changing legal landscape.

A Changing

Legal

Landscape

Leadership roles were re-evaluated and a new management team was established,

dedicated to insuring that the organization successfully adapted to the new environment.

Measures were instituted to improve internal communication and consistency among

the Board sections, to consolidate the Board in a single location, and to establish an

ongoing dialogue with other VA components and veterans' representatives.

In 1991, the Board's decision analysis and fonnat were completely revised, bringing

it into accord with the evolving requirements of the law. Procedures were established to

ensure the rapid analysis, dissemination, and discussion of Court decisions within the

Board. We fonned a group responsible for case tracking and liaison activities with the

Court and with VA's Office of General Counsel. The Board's quality review operations

were redefined to better ensure that the mandates of the Court were being carried out.

Individual accountability was also ensured by the introduction of revised performance

standards and appraisal procedures for staff counsel in 1994 and, following the enactnient

of enabling legislation in November 1994, for Board members. The first performance

evaluations of Board members were completed in March 1996. A variety of other

innovations were instituted to streamline the Board's operations and its procedures,

including the promulgation of revised Rul~s of Practice and Appellate regulations and a

revised and more equitable method of docketing appeals to the Board.

Individual

Accountability

32
INNOVAllVEINInATIVES

In 1991, the Board had no program in place for customer outreach or procedures to

ensure that veterans, their representatives, and members of Congress received timely

information on the status of appeals and responses to correspondence and other inquiries.

As a result of our customer satisfaction survey and focus groups, we developed the first

Board publication explaining in understandable language how the appellate process

works. Now in its second edition, the publication has been widely acclaimed.

In addition, in 1992, for the fIrst time, procedures were changed so that B VA hearings

are conducted by a single Board member -not a panel. Subsequently, the "trailing

docket" method of scheduling hearings was introduced. These innovations enabled us

to hold a greater number of hearings with virtually the same resources.

Trailing

Docket

One of the most promising innovations in the area of hearings has been the use of

"videoconferenced hearings." Legislation enacted in 1994 expressly authorized the

Board to conduct hearings by picture and voice transmission and, in 1995, the Board

began conducting its first videoconferenced hearings on a trial basis at two locations.

As this technology becomes more widely available, the Board will be able to provide

greater accessibility to hearings for appellants with a smaller expenditure of resources.

"Videoconferencing" is just one facet of the technological revolution that has changed

the Board in the past few years.

Video

Conferencing

In 1993 and 1994, the Board introduced modern Automated Data Processing

equipment and training for all professional and administrative employees. At this time,

every Board employee has a networked desktop computer workstation. We have also

developed a host of on-line research tools and other aids to -assist in the production of

decisions, by which Board members or attorneys can access information without leaving

their desks. Our employees can communicate and transmit documents internally and

within the Department by electronic mail. Regulations, synopses of Court decisions,

and other guidance to all our attorneys are all disseminated simultaneously and instantly

via electronic mail. These innovations have significantly improved our quality and

productivity.

Office

Automation

In 1994 and 1995, a substantially enhanced computerized case tracking system and

enhanced on-line resources were introduced. We are currently developing the next

generation of this system. At the same time, the Board has been exploring systems that

permit integrated data entry and tracking between the VA regional offices and the Board

on appeals cases. The prototype of such a system was introduced on an experimental

basis in July of this year, and we expect this system to be operational nationwide at all

VA regional offices by the beginning of Fiscal Year 1997.

I am extremely excited and gratified with the progress the Board has made in the area

of technological advancement. I routinely meet with groups of the new attorneys -

and we have many -that have come to the Board. These folks are, for the most part,

33
children of the electronic age. They have had extensive computer experience in college,

law school, and in their former legal employment in the private sector, or elsewhere in

government. They share my excitement and, while I realize the information is anecdotal,

they report that the availability of computer access and on-line resources at the Board

far outstrips that which they have encountered elsewhere.

PRODUCTIVITY AND TIMELINESS

Productivity, and its counterpart, timeliness, have been a continuing concern at the

Board. The time it takes on the average for an appellant to receive a decision in an

appeal is directly proportional to the Board's decisional output. The law expressly

requires that the Board consider and dispose of appeals properly before it in a timely

manner. One of the unexpected effects of judicial review -at least unexpected at the

time the VJRA was conceived and enacted -was that it would take longer -much,

much longer -to produce a BVA decision of the requisite formality, complexity and

thoroughness to meet the exacting scrutiny of the Court.

For example, in Fiscal Year (FY) 1990, before the impact of the Court had really

begun to be felt, the Board issued 46,556 decisions. This declined slightly in FY 1991

to 45,308 decisions, but the real impact of the Court was yet to come.

In FY 1992, decisional output dropped to 33,483. The Board's nadir in productivity

was reached in FY 1994, in which only 22,045 decisions were produced. During this

time, the number of appeals that we received remained constant, at about 39,000 per

year. As our backlog increased, the Board's average response time, our principal measure

of timeliness, increased from 152 days in FY 1990 to 781 days in FY 1994.

The

Decline

This deterioration of timeliness and productivity was heightened by the loss of some

of our most experienced decision makers to Administrative Law Judge positions,

particularly with the Social Security Administration, largely due to disparities in pay

and terms of office. In 1994, remedial legislation was enacted that restored pay

comparability and eliminated terms for Board members. Since that time, attrition to the

ALJ program has been nearly eliminated.

Attrition, of course, only exacerbated the Board's timeliness and productivity

problems; it was not their underlying cause. The truth of the matter is that, without a

significant increase in resources, increased response time is the inevitable cost of meeting

the added requirements of the law -of providing the necessary platform to permit

judicial review.

Time was necessary for the Board to relearn its job -to provide reasons or bases for

every material fmding and conclusion, for weighing and discussing every item of evidence

34
in the record, for obtaining on the record the expertise that it could no longer provide on

its own, and to keep current with the Court's continually evolving, and sometimes

erratically shifting, case law.

In terms of decision quality, our Board members and attorney staff have successfully

adapted to the new legal environment and, by any fair and objective standard of review,

issue decisions which are just, well reasoned and fully comport with the requirements

of law. We have moved from the historical "panel of experts" model, in which the

Board members' judgment was sometimes substituted for the evidence of record, into a

nonadversarial judicial model, in which BVA decisions are based exclusively on the

rule of law as applied to the record.

Adapting to

Change

As we approach some stability in the legal environment and with experience, we

have become faster at it and will continue to progress in efficiency. The Board's success

in this area is a tribute to the resiliency and skill of its members and staff. It is also a

tribute to their integrity, on which the entire adjudication system is founded. While we

have had two noteworthy deviations from the path of integrity among our counsel staff

in the recent past, we have dealt with this situation forcefully and effectively.

Nevertheless, unless and until the Board decides more appeals than it receives, the backlog

and its resulting degradation of response time, will persist.

A STRATEGY FOR IMPROVEMENT

The Secretary, Deputy Secretary, and I have met often in order to devise a

comprehensive strategy to turn this problem around. It was my pledge that, with the

necessary resources and changes in the way we did business, we could make significant

inroads into the Board's problems with productivity and timeliness so that, in FY 1997,

we would -for the first time in years -decide more appeals than we take in.

Of course, we could not stop the clock, take a time out, and fix things. Our efforts at

major restructuring had to occur while we were underway and fully operational. I am

proud to tell you that we have reached that goal in FY 1996, despite over a month off

work from furloughs and bad weather. Let me tell you how we got there.

We decided that the intertwined problems with timeliness and productivity would be

attacked on several fronts. Historically, by law, the organizational and decisional element

of the Board was the "section" of three Board members, one of whom was designated as

"Chief." This structure was now unnecessary, constrained opportunities for effective

management, and was conducive to the development of inconsistency. In 1994, legislation

proposed by the Secretary that granted decisional authority to a single Board member

was enacted and, as a result of single member decisional authority alone, the Board

experienced a 27 percent increase in decisional productivity.

Single

Member

Decisions

35
REALIGNMENT: A NEW PLATFORM FOR MANAGEMENT

With the removal of the statutory limitations on Board organization, in 1995, it became

possible to completely realign the Board to provide a "platform for management" adapted

to the single member decision making environment. In this concept, the Board was

reduced from twenty-one Sections to four Decision Teams, each integrating line and

support functions under the direction of a single manager. This has fostered a greater

sense of teamwork, provided sufficient latitude for individual managerial experimentation

and innovation, reduced administrative overhead resulting in more personnel involved

in decision producing functions, reduced the supervisor to staff ratio and increased

individual responsibility and accountability.

Reduced

Overhead

Virtually all appeals processing occurs within our four Decision Teams or in our

Appellate Group, allowing the Board to operate with fewer "overhead" personnel and

managerial staff. The realignment has also enabled us to put more Board member and

counsel positions on the "line" generating decisions. Indeed, we have completely reversed

the ratio of support to line positions from 60 percent to 40 percent prior to realignment

to the current 40 percent support staff to 60 percent on the line. As a result of this

change alone, it is estimated that decisional productivity has increased by another 25

percent.

I must emphasize that our assets are not measured in numbers alone. They also are

measured by the quality of the people that choose the Board as a career and the training

and nurturing they receive. Ours is a young organization -almost two-thirds of our

current attorney staff of 252 has joined the Board since March 1991, and over half of

our 55 Board members were first appointed to the Board during my administration.

A Young

Organization

These additions to the B VA family bring with them a great breadth of experience and

diversity of backgrounds. Ours is an organization of inclusion. We have a mentoring

program which -based on the feedback I have received from these new attorneys -is

unparalleled in either the public or private sector. Complementing this program is a

comprehensive training program for all BVA personnel, from new attorneys thr.ough

Board members.

Administrative improvements alone can go only so far to improve timeliness.

Ultimately, the overall timeliness of the Board is directly proportional to the number of

decisions generated, which -in turn -is determined by the number of people generating

decisions. In the Board's case, our backlog resulted because -in the first few critical

years of judicial review -insufficient resources were brought to bear to meet the

challenge. With the clarity of hindsight, this clearly was a miscalculation.

Fortunately, both the Secretary and Congress, supported by the veterans service

organizations, have realized that more resources are essential to do what is clearly a

bigger job. As a result, the Board's personnel resources, particularly the allocation of

staff counsel devoted to generating tentative decisions for Board member review, have

Increased

Assets

36
increased. Our planned staffing level, expressed in terms of full time employee

equivalents (FrEE) increased from 406 in FY 1990 to 477 in FY 1996. An additional

50 FrEE, which will be dedicated almost exclusively to attorney positions, is included

in the President's budget for FY 1997.

The bill, as passed by the House, included the $4 million appropriation for these

additional positions. In its report, the Senate Committee on Appropriations would

specifically rescind that increase. Several Senators are urging that the conferees adopt

the House version of the bill. I

As 

Yogi Berra once said, "When you come to a fork in the road, take it!"

The VA appellate adjudication system is now at that juncture. While we have sliced

nearly five months off our average response time from that in 1995, it is still not enough.

We have done all that we can administratively do to improve timeliness and productivity

within the confines of our current resources. The problem is not with the system or

with processing time of appeals once they reach the Board for decision, but with the

backlog. The existing backlog will significantly decline only if the rather modest

allocation of additional resources necessary to increase the number of personnel

generating decisions is provided. We will continue to turn out more cases than we take

in, but this is not enough. In fact, we will begin to lose the gains we have worked so

hard to make.

Reducing

the

Backlog

With the additional funding requested by the President, we will have enough decision

makers to result in significant and permanent decreases in the response time at the Board.

Clearly, this will benefit the veterans we all are pledged to serve. I am hopeful that we

will learn from past mistakes and will not now take the path" of fiscal shortsightedness.

These resources -in addition to the Board's realignment, single member decision

authority, automation and on-line computer resources, and a comprehensive training

program -in combination, have helped to turn the tide.

In FY 1995, the Board's output increased to 28,195. Even with the closures resulting

from the government -wide shutdown and bad weather, the Board was projected to decide

32,250 appeals in FY 1996. For the first time, response time has decreased and was

projected to reach 675 days in FY 1996. Indeed, we have done better than that. In fact,

we are currently ahead of these projections in both decision productivity and in response

time. Our current rate of production is such that the Board is deciding more cases than

are being added to our docket. We are nibbling into the backlog.

Steady

Improvement

I The $4 million appropriation was approved and included in the final bill, which was

enacted into law as Pub.L. No. 104-204 (Sep.26, 1996)

37
Increased decisional productivity and timeliness can only be achieved by a cooperative

effort between the B VA and those organizations and individuals who represent appellants

before the Board. Such efforts are underway among the several VA components involved

in the adjudication process -'-- the Veterans Benefits Administration (VBA), the Veterans

Health Administration (VHA), the General Counsel's Office, and the Board.

IntraDe1Xl11mental

Cooperation

For example, the Board and the General Counsel recently established an ongoing

exchange program, providing for the detailing of attorneys between the OGC staff group

that represents the Secretary before the Court and BV A staff counsel. Such cross training

will help advance the synergistic mission, goals, aJld objectives of both our organizations

and provide career development opportunities to our attorney staffs. In this manner we

hope to develop a mutual understanding of the common challenges we face and foster a

teamwork in order to enhance the Department's ability to serve veterans.

Numerous ongoing efforts at cross fertilization are also underway between the Board

and VBA. In the realigned Board, each of our Decision Teams has a permanent affiliation

with designated regional offices, generally on a geographic basis. This has served to

open more direct lines of communication between the Board and those individuals that

render the decisions that the Board reviews.

Using videoconferencing techniques, the Board has established regular conferences

with Veterans Benefits Administration adjudication personnel in the Des Moines, Iowa

regional office and Board members and managers in the decision Team affiliated with

that region. We are planning to expand this program in the near future to a number of

other regional offices throughout the country. In this manner, we expect to achieve

better consistency through mutual understanding and, thereby, improve the quality and

timeliness of the overall claims adjudication process.

Yesterday, and on September 23rd, a total of forty-eight of our best qualified Board

members and staff counsel will spend -or have spent -a day at a regional office.

During this visit, the Board member and counsel are allocating their time in a manner

that is most helpful to adjudication personnel, such as providing training in certain areas,

answering questions about specific claims, or explaining the impact of opinions of the

Court on the Board's remands and decisions.

While there to impart information, the Board member and counsel are also able to

obtain and relay information back to their Decision Team that may help the Board to

become more effective and efficient in crafting remands of cases to the regional offices.

In at least some of these visits, VHA is also participating in a planned discussion of how

we can improve the process and minimize the necessity of a remand by the Board for

further development or correction of a procedural defect. We believe that this exchange

of ideas, identification of common problems, and discussion of practical solutions bring

us a little bit closer to our goal of "one VA."

38
Another important illustration of the Department's collective efforts to improve the

adjudication process is in the area of Compensation and Pension (C&P) examinations.

Our data show that in about 70 percent of the cases remanded by the Board to the

regional offices, a C&P examination is among the development requested. In order to

address the problem of examination adequacy, a number of efforts are underway, including

an ongoing focus group involving VHA, VBA and the Board, and a similarly unified

approach to the development of training protocols for medical personnel who perform

C&P examinations.

Also of note in this regard, VHA recently has made the performance of high quality

C&P examinations one of the performance standards for its top managers -the VISN

directors. VHA also is in the process of establishing a high level position -Chief of

Forensic Medicine -with responsibility for the coordination and oversight of the C&P

examination process.

In this and other forums, I have raised the question of what is the Board's most

effective role in the overall schema for the adjudication of veterans benefits. My remarks

have encouraged a dialogue on the subject, although the Board has not always been a

participant in that dialogue. Clearly, such overarching policy issues are not the Board's

to make and must ultimately be determined by the Secretary and by Congress. While

the future role of the Board will undoubtedly continue to be scrutinized, it is clear that,

as long as there is judicial review of VA benefits entitlement determinations, there must

be a Departmental decision which is comprehensive enough to serve as a platform for

such review.

BVA:

A

Relevant

Future

There must be a final tribunal within the Department which acts as the quality assurance

mechanism for the entire adjudication system. In effect, this tribunal is the "court of

last resort" for most appellants, as only a small fraction of claimants avail themselves of

judicial review. As one commentator recently noted, appellate review boards, such as

the Board of Veterans' Appeals,

"are crucial to the overall missions of their respective agencies.

The decisions these tribunals issue affect thousands of individuals

and often involve considerable sums of money. Of equal

importance, these review bodies ensure that judicial standards

and agency policy are consistently and uniformly applied. In

essence, the appellate review boards are the guardians of the

legitimacy of the system." 2

2 David G. Hatfield, Appellate Administrative Tribunals: A Comparative Survey,

The OHA Law Journal, The Office of Hearings and Appeals, Social Security

Administration, Vol. 5 No.1, at 15 (Winter 1995)

39
While I am receptive to any thoughtful recommendation for improvement, I have not

heard any suggestion for systemic change that would, in my opinion, more effectively

accomplish this critical role than the Board of Veterans' Appeals.

I believe that, while we still have a way to go, we can now see the light at the end of

the tunnel -and, for the first time in many years, the light is not an approaching

locomotive. Of course, the Board does not exist in a vacuum, and would be unable to

accomplish this critical mission so effectively without the support of others. I wish to

thank the Secretary, the Deputy Secretary, the Under Secretaries for Benefits and Health,

the General Counsel, the Judges of the Court of Veterans Appeals, and leadership of the

veterans service organizations for their help in enabling us to better serve America's

veterans.

Light

at the

End of the

Tunnel

Finally, and most of all, I wish to thank all the employees of the Board of Veterans'

Appeals, whose dedication, skill, hard work, and resiliency have enabled us to meet the

challenges of judicial review and to succeed in "putting veterans fIrst."

40
PART III

FY 1996 STATISTICAL DATA

During FY 1996 BVAproduced a total of 33,944 decisions, the most decisions issued in any single

fiscal year since FY 1991. This represents a 20.4 percent increase over FY 1995, when 28,195 decisions

were issued, and a 54.0 percent increase over FY 1994, when 22,045 appellate decisions were produced.

The increase is primarily a result of (1) the legislative change in the latter part ofFY 1994 that authorized

decisions to be made by individual Board members rather than by three-member panels and (2) the

Board's organizational realignment that took effect at the beginning of FY 1996. A breakdown of the

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

Category Total Allowed Remanded Denied Other

28,738

1,080

417

34

1,877

290

744

264

76

59

365

6,027

110

51

4

171

16

177

49

43

12

94

12,834

523

134

1

649

99

341

119

20

18

80

8,314

412

186

28

837

164

210

92

11

27

163

1,563

32

46

220

11

16

4

2

2

28

Disability compensation

Disability pension

Medical

Insurance

Death

Training

Waivers

Loan guaranty

Reconsiderations

Character of discharge

Miscellaneous

Totals 33,944 6,754 14,821 10,444 1,925

FY 1995

(days)

FY 1996

Annellate Processine Cateeories (days)

Notice of Disagreement to Statement of the Case Issuance 65 76

Statement of the Case Issuance to Substantive Appeal Receipt 62 66

Substantive Appeal Receipt to Certification of Appeal to BVA 252 615

Receipt of Certified Appeal to Issuance of BVA Decision 507 261

Average Remand Time Factor 92 128

Total Processing Time All Categories 978 1,146

41
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Decisions Allowed Remanded Denied Other

26,400 16.9 % 44.0% 36.9 % 2.2%

22,045 17.5 % 48.3 % 28.1% 6.1%

28,195 19.5% 47.5% 22.7% 10.3%

1996 33,944 19.9% 43.7% 30.8% 5.7%

Estimated

FY 1994 FY 1995 FY 1996 FY 1997

22,045

35,465

47,148

781

442

49.9

$1,127

6892

1,9962

0

28,195

39,990

58,943

763

433

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$1,030

1542

5532

41

33,944

35,121

60,120

595

468

72.53

$942

431

2,445

48

41,200

38,000

56,920

504

527

78.2

$915

1300

3500

800

Decisions

Appeals Received

Appeals Pendingl

Response Time

PrE

Decisions per PrE

Cost per Decision

Hearings -VACO

Hearings -Field

Hearings-Video

1 Pending figures include appeals pending in the field but certified as ready for Board review.

2 Hearings were suspended for part of FY 1994 and FY 1995 in order to allow hearings to be

conducted at a time proximate to when an appeal was actually considered by the Board.

3 Not adjusted to reflect 21 workdays lost during Government shutdown and snow closures. If

adjusted, decisions per FTE would have been approximately 80.

43
FY

92

FY

93

FY

94

FY

95

FY

96

FY

97*

* Estimated

Response time is defined as the number of days it would take BVA to render

decisions on all pending certified appeals at the processing rate of the

immediately preceding one-year time frame.

FY92 FY93 FY94 FY95 FY96 FY 97*

* Estimated

44
FY92 FY93 FY94 FY9S FY96 FY 97*

* Estimated

$1,200

$1,000

$800

$600

$400

$200

$0

FY92 FY93 FY94 FY95 FY96 FY 97*

* Estimated

45
PART IV

ADDITIONAL INFORMATION PROVmED PURSUANT TO

STATUTORY REQUIREMENTS

I. 38 V.S.C. § 7101(d)(2)

In February 1994, in response to the growing backlog of appeals and resulting growth of case

folders stored at BVA awaiting review, the Department-modified the practice of shipping folders to the

Board as soon as cases were certified in the field as being ready for BVAreview. At the initiation of the

Board and the Veterans Benefits Administration, VA instituted the practice of adding appeals to B VA's

docket upon receipt of Substantive Appeals (VA Form 9) by the Board, while retaining associated case

folders at regional offices until a time proximate to when the Board would begin its active review of the

cases. This "advance docketing" system allows appellants access to their case folders for the filing of

new claims or other actions not under the Board's purview, while ensuring timely placement on the

Board's docket.

The following estimates of new Notices of Disagreement received in the field are provided to BVA

by the Veterans Benefits Administration. Many of the cases for which a Notice of Disagreement is

filed are resolved at the regional offices and, therefore, never reach the Board.

Estimated Number of New

Notices of Disagreement

Received in the Field

FY94

4,673

5,098

5,167

5,065

4,754

6,113

4,670

5,229

4,703

4,484

6,291

~

FY95

5,073

5,461

4,766

5,158

4,969

6,419

5,639

5,182

5,954

5,382

6,329

~

FY96

6,626

5,001

3,904

5,979

6,310

7,185

6,819

7,164

6,375

6,306

6,864

.Q.22.1:

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 61,813 66,104 74,757

Prior to the procedural change described above, the number of case folders physically received at

the Board approximated the number of appeals filed during any given time frame, as the folders were

47
transferred to the Board upon their certification as being ready for BVA's review. Since February 1994,

the number of folders received at the Board no longer corresponds with the number of appeals filed.

Rather, the number of appeals filed is indicated by the number of appeals certified in the field as being

ready for BV A review, plus those cases returned to B VA for review subsequent to remand development.

The "Cases Filed" table, below, is a hybrid resulting from the procedural change described above.

For October through January of FY 1994, the figures indicate the number of case folders physically

received at the Board. From February of FY 1994 through the end of FY 1996, the figures indicate

those appeals certified as ready for BVAreview, but whose case folders were retained in the field, plus

those case folders that were physically received at the Board, most of which were appeals returned to

the Board following remand development. The number of Substantive Appeals (VA Form 9) received

by the Board in FY 1996 is also shown. Many appeals for which a VA Form 9 is received at the Board

are resolved in the field, and therefore withdrawn, without reaching BVA.

The following infonnation is required by 38 V.S.C. § 7101(d)(2):

Number of cases appealed to BVAduring FY 1996: 35,121

Number of cases pending before BV A at the start of FY 1996: 58,943

Number of cases pending before BVA at the end ofFY 1996: 60,120

Number of cases filed during each of the 36 months preceding FY 1996

Substantive Appeals (VA Form 9)

Cases Filed Received at BV A

FY94

2,457

3,114

3,010

2,393

1,960

5,629

3,365

1,933

2,305

3,143

3,125

2..ru

35,465

FY95

2,301

3,302

2,446

2,861

3,445

4,605

3,027

3,958

3,660

3,523

3,229

~

FY96

3,030

2,269

288*

3,445

3,928

2,984

3,155

3,238

2,688

3,385

3,671

;?...Q.4Q

FY96

3,454

2,464

1,511

3,427

2,666

3,499

3,436

4,027

3,019

3,186

3,201

.3 4li

39,990 35,121 37,305

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total

* Reflects impact of Government shutdown

48
(D) Average length of time a case was before the BVA between the time of the filing of an appeal

and the disposition during the preceding fiscal year:

Responsible

Part~

Average Elapsed

Time Processing Time Interval

Notice of Disagreement Receipt Field Station

to Statement of the Case Issuance

76 days

Statement of the Case Issuance

to Substantive Appeal Receipt

App_ellant 66 days

Substantive Appeal Receipt to Field Station 615 days

Certification of Appeal to BVA

Receipt of Certified Appeal to

Issuance of BVA Decision

BVA 261 days

Average Remand Time Factor Field Station 128 days

Number of members of the Board at the end ofFY 1996: 55 members

Number of professional, administrative, clerical,

stenographic, and other personnel employed by the Board

at the end of FY 1996:

TOTAL:

434 employees

467.8 FfE

(F) Number of acting members of the Board during FY 1996:

Number of cases in which such members participated:

31

2,600 cases

II. 38 V.S.C. § 7101(d)(3)

The following projections pertaining to the current fiscal year and the next fiscal year are required

by 38 V.S.C. § 7101(d)(3):

Estimated number of cases that will be appealed to the BVA:

Fiscal year 1997: 38,000

Fiscal year 1998: 38,000

(B) Evaluation of the ability of the Board (based on existing and projected personnel levels) to

ensure timely disposition of such appeals as required by 38 V.S.C. § 7101(a):

(1) Background on BVA Timeliness Prolections. The indicator used by the BVAto forecast

its future timeliness of service delivery is BVA"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

49
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. For response time computation purposes, the term "appeals

pending before the Board" includes appeals that have been certified for BV A review but are being held

in the field pending BVA action. BVA response time is computed by fIrst determining the BVA's

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

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

BVA 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, BVAresponse time for FY 1997 is computed

as follows:

Estimated 41,200 Decisions in FY 1997 + 365 Days = 112.88 Decisions per Day

56,920 Appeals Pending before the BVA (end ofFY 1997) + 112.88 Decisions

per Day = 504 Day Response Time on Appeals

(2) Resnonse Time Projections: Based upon existing and projected levels of resources, the

estimate ofBVAresponse time, as given in the Board's FY1998 budget submission, is 504 days forFY

1997. These response time projections are contingent upon BVA's original appeal receipts estimates

for FY 1997 and FY 1998 shown in paragraph II(A), 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. Because decisions

of the Court are effective immediately upon issuance, precedential decisions may require that the Board

re-adjudicate a large number of cases already adjudicated, but not yet dispatched from the Board.

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 1994. The remand rate in FY 1996 was 43.7 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.

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) the Board will continue to stay the adjudication of certain classes of cases pending

resolution of appeals from decisions of the Court of Veterans Appeals; (3) the Board will continue to

remand a large proportion of cases to the VA regional offices for further development; and, (4) the

Board will continue to receive cases remanded for readjudication from the Court of Veterans Appeals.

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.

50
Single Board member decision authority and the Board's organizational realignment had a tremendous

effect on BVAdecision productivity and average response time in FY 1996. While it is anticipated that

additional gains will be made in FY 1997, factors such as those discussed in the preceding paragraph

could lessen projected improvements.

51