DEPARTMENT OF VETERANS AFFAIRS

Chairman, Board of Veterans' Appeals

Washington DC 20420

December 30, 1997

The Honorable Hershel Gober

Acting Secretary of Veterans Affairs

Washington, DC 20420

Dear Mr. Secretary:

I respectfully present the Fiscal Year 1997 Report of the Chairman, Board

of Veterans' Appeals, for your submission to Congress. Parts I and II of this report

provide an overview of the Board and its activities during fiscal year 1997 and the

projected activities of the Board for fiscal year 1998, as is mandated by

38 U.S.C. § 7101(d)(I). Additional specific information required by

38 V.S.C. § 7101(d)(2) and (3) is contained in Part III of this report.

As the enclosed report demonstrates, the Board made significant

improvement in its productivity, timeliness, and efficiency during fiscal year 1997.

We at the Board, and the veterans we serve, owe a large debt of gratitude to you

for your continued leadership, commitment, and invaluable assistance to the

Board. Without your support, t~e Board's recent improvements and encouraging

prospects for additional gains in the future would not have been possible.

I hope that the enclosed report provides you, the Congress, and our Nation's

veterans a clear and comprehensive picture of the Board's mission, activities, and

unwavering dedication to putting veterans first.

Very respectfully,

-s-- (

"""- Enclosure

~lt-\ tc\~ ~

/i~ge~. Bauer
TABLE OF CONTENTS

PART I. THE BOARD OF VETERANS' APPEALS

HISTORICAL OVERVIEW , 1

SINCE JUDICIAL REVIEW 3

HISTORICAL ORGANIZATION OF THE BOARD 6

CURRENT ORGANIZATION OF THE BOARD 7

ORGANIZATIONAL DIAGRAM 8

ADMINISTRATIVE ACTIVITIES 10

ACCESS AND OUTREACH 12

LEGISLATIVE INITIATIVES 12

SELECTION OF BOARD MEMBERS 13

ROLE OF THE BVA PHYSICIAN 13

ATTORNEY AND AGENT FEE AGREEMENTS 14

REPRESENTATION BEFORE THE BOARD 15

LIAISON ACTIVITIES 15

PROFESSIONAL TRAINING 17

RESEARCH MATERIALS 18

PRODUCTIVITY AND TIMELINESS 20

MEMBERS OF THE BOARD OF VETERANS' APPEALS 22

PART II. FY 1997 STATISTICAL DATA

TABLES AND GRAPHS .23

PART III. ADDITIONAL INFORMATION PROVIDED PURSUANT TO

STATUTORY REQUIREMENTS

, 29, 

31

32

I.I. ESTIMATES 38U.S.C. 38 U.S.C. § OF 7101(D)(2) 7101(D)(3) FUTURE TIMEUNESS AND PRODUCTIVITY

111
PART I

THE BOARD OF VETERANS' APPEALS

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

Veterans Affairs (VA) that is responsible for entering the final decision on behalf of the Secretary

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

annually for appellate review. 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 Vnited 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 II,

President Franklin D. Roosevelt established the Veterans Administration as the organization

responsible for administering all veterans' programs and benefits. The previous patchwork

system of appellate adjudication of claims for veterans' benefits was eliminated and all questions

of entitlement to benefits were subject to a single appeal to the Administrator of Veterans'

Affairs. On July 28, 1933, President Roosevelt created the Board of Veterans' Appeals by

Executive Order 6230, Veterans Regulation No. 2(a). The Board was delegated the authority to

render the final decision on appeal for the Administrator and, organizationally, was directly

responsible to the Administrator. The Board was charged "to provide every possible assistance"

to claimants and to take final action 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.
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 II. For example, in 1949 the Board rendered almost

70,000 decisions. These decisions generally were simple, short, and concise.

The 1950s were characterized by the implementation of organizational and

operational programs to achieve more efficient case management.

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

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

claims adjudication policy was terminated because it was felt that this was inconsistent with the

Board's primary function as an independent, quasi-judicial agency within VA. Appellate policy

also was significantly altered with the enactment of Public Law 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

first published 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 BV A decision,

increased significantly. At the end of fiscal year (FY) 1982, the average appellate processing

time was 483 days, up from 443 days the preceding year. To help with the increased workload,

the President approved an increase in the number of Board members to form 19 three-member

sections in 1984. The maximum number of authorized Board members subsequently was

increased to 67 and 21 sections were formed. This 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,OOOs until FY 1989, when a peak of

74,291 was reached. This figure returned to the 60,OOOs 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 and 1991, to an average of 37,390 per year from

FY 1992 to 1996. In FY 1997, this number fell to 22,884.

2
SINCE JUDICIAL REVIEW

1988 THROUGH 1997

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.

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

this Court. ..has often resulted in new, different, or more stringent requirements for

adjudication." Locher v. 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 were degraded by the impact of changes in the law,

as interpreted by the Court. Compliance with the law necessitated achieving and maintaining

standards of decision quality at a level not contemplated prior to the enactment of the Act. As

a result, BV A decisions have become longer and more complex than they were prior to judicial

review. Factors affecting the timeliness of appellate processing include:

.evidentiary development required by the Department's "duty to assist"

claimants;

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

important decisions;

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

research by the Board and its staff;

.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;

.strict requirements imposed by more formal Rules of Practice;

.added responsibilities of attorney fee agreement processing and review;

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

.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

3
Court either the authority or the responsibility

to supervise or oversee the ongoing

adjudication process which results in a BVA

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."

BV A Response Time, FY 92 -97

800

700

600

500

400

\334

300 I'

240

200 I I I I I

FY92 FY93 FY94 FY95 FY96 FY97

Response time is the number of days required In FY 1997, there were 66,566 notices of

for BVA to render decisions on all pending disagreement filed. This represented a

certified appeals at the processing rate of the decrease of 11 percent over the 74,757 filed

immediately preceding one year time frame. in FY 1996, but more closely approximates

the number typically filed annually in recent

years. The total number of cases ~ppeals in FY 1997 was 72,500. This number includes cases

added to the Board's docket during the fiscal year, as well as case folders that were physically

received at the Board, including original receipts, cases remanded to the Board by the Court,

and appeals returned to the Board after remand development by regional offices.

As the graph above shows, BVA's response time increased from 240 days at the end of FY

1992 to 781 days at the end of FY 1994. The Board has improved its response time in each of

the three years since then. By the end of FY 1997, BVA's response time was 334 days.

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 BVA 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.

The "Board of Veterans' Appeals Administrative Procedures Improvement Act of 1994,"

Pub. L. No. 103-271, specifically authorized the Board to conduct hearings using electronic

media. BVA began conducting videoconferenced hearings in FY 1995 and expanded their use

in FY 1996 and 1997. Videoconferencing is discussed in more detail on page 11.

4
The VJRA removed a historic $10 limitation on the fees that may be charged by attomeys-atlaw 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 3.2 percent of appellants whose appeals

were decided by the Board in FY 1997 and 3.4 percent the previous year.

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 Court has ruled that the Board must consider every potentially applicable regulation in

its decisions, 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. Among the Board's reasons for remanding cases are the need for specific medical

information, 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.

Numerous other Court rulings also profoundly affected the way the Board adjudicates cases.

Board decisions must include supporting "reasons or bases," making Board decisions longer

and more complex. Board decisions must now include candid assessments of the credibility of

lay testimony, giving Board decisions a more adversarial tone than in the past. The Board can

no longer decide cases on the basis of the medical expertise of its members and changed 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 page 13 of this report. Still other

Court decisions resulted in Board decisions that are more technical and "legalistic" than they

were prior to judicial review.

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

5
ci ~~::? than when an appeal folder is received at the Board. This change

<:mGANIZA1X>N eliminated 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. The Board's docketing procedures were

improved further during FY 1997 as a result of advances in the joint effort by BV A and the

Veterans Benefits Administration (VBA) to develope a single computerized system for docketing,

tracking, and managing appeals. This effort is discussed in more detail on page 10.

HISTORICAL 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 V.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 of Board members. The Board is also

authorized by § 7101(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 8.)

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 the 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.

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. 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.

The organizational structure of the Board underwent relatively few major changes for more

than a decade prior to FY 1995. BVA was divided into two principal components: the

Professional, and the Administrative Services. Functional responsibilities and authorities

6
remained basically unchanged from those in effect in the 1980s and earlier, and the organizational

structure reflected the prevailing management philosophies of the 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.

CURRENT ORGANIZATION 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 provided BVA the opportunity to develop a more efficient

management structure -one that afforded the best prospects for improving overall productivity

and decision timeliness.

Toward the end of FY 1995, the Board installed an organizational alignment that created an

atmosphere in which Board members, staff counsel, and administrative support personnel could

interface directly and regularly, thereby establishing a greater sense of teamwork. The

realignment reduced administrative overhead and allowed sufficient latitude for different, even

competing, managerial styles to be used by similarly staffed teams. By reducing the number of

identical administrative positions required to support the former 21 Board sections and reducing

the supervisor to staff ratio, the Board was able to hire and place additional attorneys in decision

production positions w~thout exceeding its FfE limit.

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

component of the Board, containing the staff counsel and Board members who review and

decide appeals. From a staffing perspective, each decision team is organized alike. The target

staffing level for each of the decision teams is one Deputy Vice Chairman (DVC) at an AL2

level, 15 Board members (two of whom are designated as Chief members), approximately 60 to

70 attorneys, and 18 administrative personnel who, although under the operational direction of

the Board's Administrative Service, provide direct support to the decision teams. 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.

Virtually all aspects of the processing of appeals occur within the decision teams, where

increased individual responsibility and accountability are basic tenets. Although BVA's

administrative personnel are assigned to the Administrative Service, they are organized into

four discrete units, each of which is aligned with a specific decision team to provide all required

case tracking, associated correspondence, and other administrative case handling support. The

new arrangement has allowed the Board to reduce the number of required administrative positions

and increase the number and relative proportion of attorney positions, compared with the predecision team structure.

7
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BVA's administrative personnel ensure the efficient processing of appeals by performing the

essential functions of 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, transcribes and electronically transmits to the Board's offices in

Washington, DC, transcripts of personal hearing proceedings and other dictated work products.

The unit also maintains a Veterans Information Office to answer general questions about the

Board's processes and procedures and to provide current appeal status information to appellants

and other inquirers.

Within each decision team, managers have the authority to assign Board members, attorneys,

and administrative personnel into whatever decision-making configurations they feel produce

the best 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 ofBVA

and the Veterans Benefits Administration, and has resulted in better communication and case

control. Efforts to improve direct communication between Board members and adjudicators in

the field is discussed on page 11.

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

decisions to Board members within their decision team for review. Board members review the

record and, when necessary, revise the submission or return it to counsel for revision. When a

decision is acceptable to the Board member, it is signed by the member and undergoes a quality

review within the decision team. To ensure quality and consistency throughout the Board, a

sampling of decisions also undergoes an additional review by a Chief member of a decision

team other than the team that prepared the decision.

9
A staff of medical advisers assists Board members by conducting medical

research and by training staff counsel on medical issues. In addition,

medical evaluations of a case may be obtained from an independent medical

expert, such as a member of the faculty of a leading medical school.

ADMINISTRATIVE ACTIVITIES

In recent years, the Board has introduced numerous administrative initiatives to meet the

challenges resulting from judicial review and to improve its service to veterans and their families.

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 1997, the Board revised VA Form 9, "Appeal to the Board of

Veterans' Appeals," to make the form easier for users to understand. This revision, which

considered comments from veterans' service organizations and agencies within VA before

finalization, will be available for use in 1998.

Until recently, VBA and BVA used completely independent computer systems to track appeals,

VBA using the Appeals Tracking System (ATS) and BV A using the Veterans's Appeals Control

and Locator System (VACOLS). Working together, VBA and the Board made substantial

progress during FY 1997 in the development and deployment of a unified information system

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

throughout the VA system.

Paralegal specialists.

legal clerks. and other

: Administrative Service

I employees perform vital roles

I in the processing of appeals at

~ the Board. including docketing

and the tracking and handling

of case folders. They~ 

also prepared written

, ",'1 

responses to more than 2.600

'i Congressional inquiries and

; responded to innumerable

-written and telephonic

"-I requests for information and

I assistance from appellants

during FY 1997.

:;) ,\'

10
Since the installation of the basic program at regional offices early in FY 1997, two successive

releases during the year provided additional functionality to the application. Regional office

personnel can now directly enter appeals on the Board's docket, obtain lists of cases requested

by the Board, query the appeal data base regarding the status of cases, update the system when

an action on an appeal has been completed, and generate various management reports. As a

direct result of this initiative, both of VA's adjudicative operational elements have begun to

realize the following benefits:

..

Improved accuracy and timeliness of Departmental reports and appeal status

determinations;

Reduced exchanges of appeals-related paper between VBA and BVA;

Reduced administrative overhead and operating costs associated with appeals for

both VBA and BVA;

Improved appeals-related workload management and planning information.

The Board expanded its use of videoconferencing to conduct personal hearings and to conduct

training and infonnation exchanges between BV A and VA regional offices during FY 1997.

Through the use of this interactive video technology, Board members 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 -due to cost and time constraints -might be held only once or twice each year in their

areas. Videoconferencing has proven to be a very effective way to conserve the productive

capability of Board members by reducing travel time. With videoconferencing, Board members

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

hearings. The 233 videoconferenced hearings conducted during FY 1997 was an increase of

nearly five times the 48 videoconferenced hearings held the previous year. The Board expects

to conduct 1,000 of these hearings during FY 1998.

Videoconferencing has also been employed regularly as a vehicle for improving direct

communications between Board members and regional office adjudication personnel. It has

demonstrated great potential as a practical way to conduct training and information exchanges

between BV A and the field. Although it is too soon to quantify results realized as a direct result

of this use of videoconferencing, anecdotal feedback regarding these sessions has been

overwhelmingly positive. This type of regularly occurring training and two-way communication

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

for travel to and from geographically distant locations. Videoconferencing equipment was

installed in 13 locations during FY 1997, bringing the total number of remote hearing sites to 15

by the end of the fiscal year. Five more sites will be equipped in FY 1998, along with a third

videoconferencing hearing room at the Board.
ACCESS AND OUTREACH

The Board maintains 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 BV A's

pamphlet, "Understanding the Appeal Process," links plain language answers to numerous

commonly asked questions. These WWW pages are accessed from the following WWW

Universal Resource Locator (URL):

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

Board decisions issued in calendar years 1994 and 1995 are also available in searchable text

format through VA's Web pages. Although technical difficulties prevented the Board from

placing its FY 1996 decisions on the Web prior to the end of the fiscal year, they are available on

a CD-ROM, discussed on page 20, that is available for purchase by the public. The Board

expects to make both its FY 1996 and 1997 decisions available through its Web pages early in

calendar year 1998. The URLs for BVA's decisions are:

~lIRL

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

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

As a service to veterans and the general public, an electronic mail (e-mail) link to the Board

that can be accessed from the Department's Web pages was established in FY 1996. In FY

1997, nearly 300 e-mail inquiries were received and answered by the Board. This was more

than twice the number of e-mail inquiries received the previous year.

LEGISLATIVE INITIATIVES

During FY 1997, the Board drafted legislation which would provide that field hearings be

scheduled in the order in which the appeal was filed -what the Board refers to as "docket

order" -instead of the order in which requests for such hearings are received. The purpose of

this proposal is to reduce delays in the issuance of Board decisions caused by late requests for

field hearings.

The Board is required to provide the opportunity for a hearing before making its decision.

Hearings are conducted by Board members at the Board's offices in Washington, D.C., or at VA

field facilities. The latter hearings are informally referred to as "travel Board hearings."

U ndet current law, Board hearings held at VA field facilities are scheduled

in the order in which requests for hearings within a field facility's area are

received by VA. This procedure can conflict with the statutory requirement

that the Board consider appeals in docket order. In other words, the fact

that an appellant has an "early" field hearing does not necessarily have an

effect on when the Board will consider the substantive appeal. At the same

12
time, because of limited Board resources, field hearings may be held

at some stations only once a year. Accordingly, the decision in the

case of an appellant high on the "docket order" may be delayed if the

appellant requests a field hearing close to the time when the Board is

ready to review that appellant's appeal.

The proposed legislation, forwarded to the Speaker of the House of Representatives and the

President of the Senate in August 1997, but not introduced as of the end of FY 1997, would

make the priorities for field hearings and appellate consideration the same: docket order.

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 competiti ve -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 to the Board from the ranks of staff counsel, 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.

THE ROLE OF THE BV A PHYSICIAN

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

physicians are employed in the decision-making process by eliminating their traditional role as

adjudicators. In the cases of Gilbert v. Derwinski, 1 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' I

fairness and impartiality of the Board's procedures for utilizing Board tri. BVA

medical advisers' opinions. Since announcement of Austin, the Board has

not utilized opinions from its medical advisers in adjudicating appeals.

13
In August 1995, the Court issued an opinion that further defined the status of BV A 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 BVAmedical 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 of BV A medical

advisers in adjudicating future appeals. .

The absence of medical members within BV A 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,

discussed on pages 18, have been greatly expanded to help meet this need.

The Board is frequently required to obtain medical information and/or expert opinion on the

record from independent medical experts who usually serve on the faculties of leading medical

schools. In FY 1997, the Board requested 113 opinions from independent medical experts

under 38 V.S.C. § 7109.

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

part-time) physician staff in other capacities. BVA staff physicians actively provide informal

advice of a general 'and educational nature to staff counsel and Board members. They each

conduct several medical lectures per month, covering topics such as basic examination procedures,

orthopedic examinations, scans and other diagnostic procedures, and understanding examination

and laboratory results. 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 V JRA required attorneys and agents to file with BV A their fee agreements for services in

connection with a proceeding for veterans' benefits before VA. It also gave BV A the authority

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

In FY 1997, the Board received 683 fee agreements for filing and

review, an increase of 85 percent over FY 1996, and 173 percent 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 13 motions for Board review

of fee agreements, and three were filed by attorneys. At the end of the

14
fiscal year, six motions were pending. In FY 1997, the Board issued 14

decisions on such motions: in 12 cases, the Board ruled that the attorney

could not charge a fee; in one case, it ruled that the attorney could charge;

and in one case, it dismissed the motion.

~ f--1--., '"

Most of the Board's decisions concerning fee agreements involve --b

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

for payment directly by VA under 38 V.S.C. § 59O4(d). In FY 1997,86 such cases were referred

for such decisions. Eighty cases were completed during the fiscal year: 39 ordered payment to

the attorney; 40 held that the attorney could not be paid; and one was dismissed.

REPRESENTATION BEFORE THE BOARD

In FY 1997, 86.2 percent of appellants were represented by one of the accredited service

organizations, 3.3 percent were represented by an attorney or agent, and 10.5 percent were not

represented. In FY 19%,84.6 percent were represented by an accredited service organization,

3.5 percent were represented by an attorney or agent, and 11.9 percent were not represented.

(See table on page 24, Part II.)

LIAISON ACTIVITIES

Throughout the year, the Chainnan and Acting Chainnan 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.

On several occasions during the year, the Chairman and Acting Chairman 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 1998 and

the Board's legislative proposals.

Two significant reports that examined the Department's entire claims processing system

were issued in FY 1997. The Veterans' Claims Adjudication Commission issued its final report

in December 1996 and the National Academy of Public Administration (NAPA) issued a report

entitled, "Management of Compensation and Pension Benefits Claim

Processes for Veterans," in August 1997. The commission's report

cited the need for increased intradepartmental coordination in the

processing of claims, including appeals, and suggested a number of

long-term actions to improve the Department's overall adjudication

LIAISON

!)

/2~~~~..f ~

15
process. NAPA was largely supportive of BV A's efforts over the last several years, stressing the

need to build upon the Board's recent success and to establish challenging goals for continued

improvement.

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

service to appellants. One of a service organization's representation activities is the preparation

of advocacy briefs, which occurs prior to the Board's review of a case. These representative

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

appeals. BV A's increased decision production of the last two years necessitated a commensurate

increase in brief production by VSOs. Most service organizations responded to the challenge

by demonstrating significant -in some cases extraordinary -increases in the their advocacy

brief production rates during FY 1997.

Throughout the year, the Chairman or Acting Chairman addressed or participated in more

than half a dozen conventions and seminars held by veterans' service organizations, both national

and state, including service officer training seminars sponsored by VFW, the National

Association of County Veterans Service Officers, and the national conventions of The

American Legion and Disabled American Veterans.

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

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

by the Office of the Chairman and decision team administrative personnel. The Chairman and

Acting Chainnan 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 2,682 Congressional inquiries in FY 1997.

BVA counsel and Board

members examine appellants'

entire claims folders and use

numerous legal and medical

references, including many

maintained on the Board:S: own

sophisticated computer

network, to review and decide

appeals.

16
PROFESSIONAL TRAINING

The Board continued its intensive training program for attorney staff

and Board members during FY 1997. Under the direction of the Vice

Chairman, a committee of key personnel acting as a Board of Regents

conducted a training program using a university model. Its Charter is 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 BV A to accomplish its mission to

enter timely, consistent, and high quality appellate decisions on behalf

of the Secretary.

BV A's professional staff has grown significantly in recent years. An average of 66 new staff

counsel were hired during each of the two fiscal years preceding FY 1997. In FY 1997, the

Board realized a net increase of 31 staff counsel. It should be noted that the complexity of

today's veterans' law will require intensive training of these new counsel before they can become

fully contributing decision team members.

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 offunctional areas, including appeals

development and adjudication, veterans' law, the hearing process, medical issues, and computer

word-processing techniques. The 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. In that vein, BV A and the Office of General Counsel instituted a program in

which senior level attorneys from each office are selected to prepare and deliver lectures on

topics of concern to both offices. By sharing information and the perspectives of each office

with the other, veterans are better served and the goal of maintaining a customer service outlook

and awareness, a key element of the training program, is furthered.

1'7
Early in their careers at the Board, BV A attorneys participate in off-site VA seminars, including

programs held at the Veterans Benefits Administration's Adjudication Academy in Baltimore,

MD, that broaden their understanding of the veterans' benefit claim process. This effort directly

supports the Department's one VA efforts by developing a familiarity with and understanding

of regional office claims adjudication processes among BVA staff attorneys as well as an

understanding of associated functions performed by Veterans Health Administration personnel.

Additional intradepartmental programs in which BV A participates include:

.VBA/Compensation 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;

.Development of an interactive C&P examiners' training film on CD-ROM, which

is being produced by VBA and VHA;

.Automated Medical Information Exchange system conference calls involving

VBA and VHA;

.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). LVA 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.

To provide its leadership with the requisite tools and skills to succeed, the Board's senior

managers attend a variety of training and managerial development seminars appropriate for

their grade and management levels. In this manner, the Board is investing in its future to ensure

its leadership is equipped with the best, most current approaches to motivating employees and

maintaining the highest possible productivity level.

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.

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

practicable is evidenced by BVA's sophisticated computer network and

the installation of a personal computer at the workstation of every

staff counsel, Board member, and member of the professional and

18
administrative staff. A variety of applications and productivity aids are available for all BVA

staff and VSO appeals representatives connected to the BVA network, including a significant

number of automated reference materials ("research tools"). This material is accessible through

a computer selection menu that facilitates conducting legal and medical research from an

individual's workstation. Training has been provided to familiarize network users with the

resources available, the steps necessary to access the desired 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 BV A staff counsel

and Board members far exceeds that which is normally found in the private law sector.

The Board's on-line research tools include indexes and text files that are compiled in either

data bases or word processing files. The data bases used by the Board differ from simple word

processing files in that the search engine is considerably more sophisticated. Indexes are used

to ascertain the availability and location of information on different subjects. The V ADEX (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, Chairman's numbered memoranda and videotaped training lectures are also

available.

The Index of Veterans' Benefits Law (Annotated) was created to facilitate legal research and

assist with the preparation of Board decisions. It 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.

The Board's Text files are useful sources of information and reference text that facilitate the

preparation of draft decisions. Categories of files compiled in FOLIO infobases include: slip

opinions of the U.S. Court of Veterans Appeals (1990 to the present); BVA decisions since

1993; and Title 38 of the Code of Federal Regulations (updated monthly). A commercial

application that contains the Physicians' Desk Reference (pharmaceutical product descriptions

and information about drug interactions and side effects), the Merck Manual, (a quick reference

manual for most common diseases), and Stedman's Medical Dictionary is also available.

Precedent opinions of VA's Office of the General Counsel since 1993 and Chairman's numbered

memoranda since 1991 are available by citation number in a word processing format. Available

in another highly searchable format are several VBA resource items, including VBA directives,

training guides, and manuals.

19
Other research tools and training materials prepared

and updated by BV A personnel include: "Headnotes,"

summaries of selected opinions of the U.S. Court of

Veterans Appeals; information concerning military

awards and decorations; a discussion of attorneys' and

agents' fees under 38 U.S.C. § 5904; and medical

abbreviations. Training materials include a BVA

training guide and information on hearing loss

disability, tinnitus, and neurology.

In February 1994, traditional decision indexing was

discontinued in favor of making a highly searchable

CD-ROM (Compact Disc -Read Only Memory)

available to the public. Board decisions issued in

calendar years 1994 through 1996 are available for

purchase from the Government Printing Office on CDROM (Stock # 051000-00213-0). 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.

More than 80,000 Board decisions issued

in calendar years 1994 through 1996 are

contained on a single CD-ROM.

Included on the Board's CD-ROM of decisions is a vocabulary list that facilitates searches

for specific topics. The capability to display, copy, and print search results represents an enonnous

potential reduction of research time for attorneys preparing decision recommendations, appeal

representatives preparing advocacy briefs, and others interested in the appeal process.

PRODUCTIVITY AND TIMELINESS

FY 1997 was a landmark year for the Board in many ways. In terms of both the number of

decisions issued and decisions per FfE, FY 1997 was the Board's most productive year since

FY 1991. In issuing 43,347 decisions, the Board exceeded the previous year's total by 27.7

percent, nearly doubling the number of decisions (22,045) issued in FY 1994. The 88.1 decisions

issued per FfE in FY 1997 was 21.5 percent more than the previous year and nearly 77 percent

more than the low of 49.9 decisions per FfE in FY 1994.

BVA's cost per decision and timeliness were the Board's best since FY 1992. The cost per

decision in FY 1997 was $839, compared to $939 in FY 1996 and $1,126in FY 1994, a reduction

of 10.7 percent and 25.5 percent, respectively. Response time fell to 334

days by the end of FY 1997, down nearly 44 percent from the previous

--year and more than 57 percent from FY 1994. The Board's vast

improvement in these areas was neither a statistical fluke nor the result of

~

c:

20
chance. It was the product of innu

long-tenn and short-tenn, that have

efficiently and to accommodate

accompanied judicial review.

Moreover, the Board is now positioned and prepared to move forward

as a fully engaged participant in the Department's "One VA" approach to doing business. To

fulfill BV A's charter and both the letter and spirit of the law, the Board must continue to function

as an independent operating element within the Department. At the same time, the Board must

continue to work closely with the Department's other operating elements, particularly VBA, to

provide veterans and their families with the quality service they deserve and the timeliness they

expect. By continuing to identify and pursue opportunities for cross-organizational approaches

to processing and resolving veterans' benefit claims, BVA expects to demonstrate continued

improvement in the years ahead, not only to the Board's productivity and timeliness, but to that

of the Department overall.

The history, organization, and operation of the Board of Veterans' Appeals discussed in this

report share one common element: the effort of BVA's employees to put veterans first.

21

merable initiatives, large and small,

positioned the Board to operate more

the unprecedented changes that
MEMBERS OF THE BOARD OF VETERANS' APPEALS

At the close of FY 1997, the following 54 individuals, 30 of whom are veterans, were serving

as members of the Board of Veterans' Appeals. At the close of FY 1997, no Board member

appointments were awaiting Presidential approval. There are no physicians serving as Board

members.

KANNEE, BRUCE N.

KELLER, STEVEN L.

KENNEDY, SUSAN L.

KRENZER, EILEEN M.

LYON, MICHAEL D.

MARTIN, JEFFREY J.

MOEHLMANN, HOLLY E.

MONROE, JACQUELINE E.

ORMOND, JOHN E.

PELLEfIER, RENEE M.

PHILIPP, ROBERT D.

PHILLIPS, NANCY I.

POWELL, URSULA R.

RICE, WARREN W., JR.

ROBIN, NANCY R.

(DEPUTY VICE CHAIRMAN)

RUSSELL, CRAIG P.

SABULSKY, MARY M.

(DEPUTY VICE CHAIRMAN)

SCHWARTZ, HOWARD N.

SENYK, GEORGE R.

SHARP, JANE E.

SHERMAN, IRIS S.

SHERMAN, JO

SHUFELT, GORDON H.

SPICKLER, DAVID C.

STANDEFER, RICHARD B.

(SENIOR DEPUTY VICE

CHAIRMAN)

SULLIVAN, LAWRENCE M.

SULLIVAN, ROBERT E.

SYMANSKI, CHARLES W.

TOBIAS, CONSTANCE B.

TOBIN, LEO W., III

WILKINS, STEPHEN L.

AGUAYO-PERELES, JOAQUIN

(DEPUTY VICE CHAIRMAN)

BAUER, ROGER K.

(ACTING CHAIRMAN)

BLASINGAME, JACK W.

BOHAN,BARRYF.

BOSCH, RONALD R.

BRAEUER, WAYNE M.

BROWN, DEREK R.

CALLAWAY, BEfTINA S.

CHEEK, MICHAEL D.

COHN, STEVEN L.

COPELAND, BARBARA B.

DANNAHER, THOMAS J.

DAY, JONATHAN E.

DURKIN, SHANE A.

FLOWERS, FRANK J.

FRANK, RICHARD B.

GALLAGHER, MARY

GICK, GARY L.

GOUGH, JEROME F.

GREENSTREET, MARK W.

HOGEBOOM, CHARLES E.

(DEPUTY VICE CHAIRMAN)

HYMAN, BRUCE E.

JORDAN, VICKY L.

The body of veterans' common law

developed since judicial review began now

fills nine bound volumes.

22
PART II

FY 1996 STATISTICAL DATA

During FY 1997, BVA issued 43,347 decisions -the most decisions issued in any fiscal year since

FY 1991. This total represents a 27.7 percent increase over FY 1996, when 33,944 decisions were

issued, and was nearly double the 22,045 decisions produced in FY 1994. The increase is primarily a

result of (1) the legislative change in the latter part of FY 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. The disposition of the Board's decisions by

category of appeal is provided below.

Category Total Allowed Remanded Denied Other

6,511

116

40

0

195

21

152

56

29

6

100

17,250

533

155

16

826

104

356

159

20

41

132

12,496

503

264

52

1,532

208

324

108

15

45

325

504

23

25

6

39

7

17

3

0

0

33

Disability compensation 36,761

Disability pension 1,175

Medical 484-

Insurance 74

Death 2,592

Training 340

Waivers 849

Loan guaranty 326

Reconsiderations 64

Character of discharge 92

Miscellaneous 590

Totals 43,347 7,226 19,592 15,872 657

FY 1996

(days)

FY 1997

ARRellate Processini! Catei!ories (days)

Notice of Disagreement to Statement of the Case Issuance 76 83

Statement of the Case Issuance to Substantive Appeal Receipt 66 65

Substantive Appeal Receipt to Certification of Appeal to BVA 615 683

Receipt of Certified Appeal to Issuance of BVA Decision 261 120

Average Remand Time Factor 128 76

Total Processing Time (All Categories) 1,146 1,027

23
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Decisions Allowed Remanded Denied Other

1994 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%

43,347 16.7% 45.2 % 36.6% 1.5%

Estimated

FY 1995 FY 1996 FY 1997 FY 1998

28,195 33,944 43,347 41,600

43,537

12,919

58,943

763

433

65.1

$1,030

1543

5533

41

38,447

32,405

60,120

595

468

72.5

$942

431

2,445

48

32,916

44,110

39,657

334

492

88.1

$839

1,297

4,564

233

32,500

40,000

34,557

334

491

84.7

$905

2,000

4,400

1,000

Decisions

Case Receipts!

Added to Docket

Received at BV A

Cases pending2

Response Time

FTE

Decisions per FIE

Cost per Case

Hearings -VACO

Hearings -Field

Hearings -Video

1 Case Receipts: Combined total of (1) new cases added to BVA's docket, which consist of appeals of

original or reopened claims; and (2) cases received at BVA, which consist of all cases physically

received at the Board, including original appeals received pursuant to case callup procedures, as well

as all cases returned to the Board's docket. (I.e., cases returned following remand development, cases

remanded by the Court, and cases received for reconsideration or vacate actions).

2 Pending figures include appeals pending in the field but certified as ready for Board review.

3 Hearings were suspended for part of FY 1995 in order to allow the conduct of hearings at a time

proximate to when an appeal was actually considered by the Board.

25
800

700

600

500

400

334

300

200 I I I I I

FY 93 FY 94 FY 95 FY 96 FY 97 FY 98*

* 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.

FY93 FY94 FY95 FY96 FY97 FY 98*

* Estimated

26
* Estimated

$1,200

$1,000

$800

$600

$400

$200

$0

FY93 FY94 FY95 FY96 FY97 FY 98*

* Estimated

27
PART III

I. 38 V.S.C. § 7101(d)(2)

In February 1994, at the joint initiative of the Board and the Veterans Benefits Administration, VA

instituted the practice of adding appeals to BVA'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 is a

benefit to appellants because it allows them access to their case folders for the filing of new claims or

other actions not under the Board's purview, while ensuring timely placement of their appeals 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

FY95

5,073

5,461

4,766

5,158

4,969

6,419

5,639

5,182

5,954

5,382

6,329

:1.m

FY96

6,626

5,001

3,904

5,979

6,310

7,185

6,819

7,164

6,375

6,306

6,864

~

FY97

6,213

5,332

5,025

4,978

5,329

5,648

6,087

5,992

5,198

5,574

5,466

~

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 66,104 74,757 66,566

Prior to the docketing procedure change described above, the number of cases appealed during any

given time frame approximated the number of case folders physically received at the Board, as the

folders were transferred to the Board upon their certification as being ready for BVA's review. Since

the change, the number of cases appealed during any given time frame necessarily includes the number

of appeals (VA Form 9) added to the Board's docket as well as those case folders physically received at

the Board.

29
Cases received at the Board include original appeals forwarded to BVA pursuant to case callup

procedures, as well as cases returned to the Board's docket (i.e., cases returned following completion

of remand development actions by the originating VA field activity, cases remanded by the U. S. Court

of Veterans Appeals, and cases received for reconsideration 'or vacate actions). Appeals added to the

Board's docket consist of new appeals of original or reopened claims. Appellants file new appeals wi th

the VA field offices that adjudicated their original claims, typically a VA regional office. New appeals

recei ved in the field are then added to the Board's docket by the receiving VA regional office using the

shared information system technology described earlier on pages 10 and 11.

Many new appeals for which a VA Form 9 is received and added to the Board's docket are resolved

in the field, and therefore withdrawn, without reaching BVA. Upon completion of all case development

actions, those appeals not resolved in the field are certified by the regional offices as being ready for the

Board's review. Certified appeals are retained at the regional offices awaiting callupby BVA, at which

time the associated case folders are physically transferred to the Board.

The following information is required by 38 V.S.C. § 7101(d)(2):

(A) Number of cases appealed to BVA during FY 1997: Cases received at BVA: 44,110

Cases added to BVA Docket: 32,916

(B) Number of cases pending before BVA at the start of FY 1997: 60,120*

Number of cases pending before BVA at the end of FY 1997: 39,657*

* Includes certified appeals pending in the field, as well as cases pending at BVA

(C) Number of cases filed during each of the 36 months preceding FY 1998:

New Appeals (VA Form 9) Filed

FY 95 FY 96 FY 97

5,238 3,824 2,862

5,410 2,824 3,098

3,247 1,824 2,812

2,743 3,824 2,859

3,122 2,824 2,430

3,331 3,824 2,846

3,022 3,824 2,631

3,338 3,824 3,154

3,461 3,824 2,618

3,092 3,824 2,810

3,871 3,824 2,531

3,662 3,824 2,265

Cases Received at BV A

FY95

357

944

610

728

758

1,640

614

1,263

658

1,356

1,217

2,774

FY96

2,020

1,967

55*

3,963

3,427

2,501

2,892

3,194

2,960

2,926

3,676

2,824

FY97

4,184

3,782

4,029

3,143

3,558

3,639

3,173

3,393

3,778

4,359

3,490

3,582

32,405 44,110 43,537 38,477 32,916

Month

October

November

December

January

February

March

April

May

June

July

August

Septem ber

FY Total 12,919

* Reflects impact of Government shutdown

30
(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

Party

Average Elapsed

Time Interval Processing Time

Notice of Disagreement Receipt

to Statement of the Case Issuance

Field Station 83 days

Statement of the Case Issuance

to Substantive Appeal Receipt

Appellant 65 days

Substantive Appeal Receipt to Field Station 683 days

Certification of Appeal to BVA

Receipt of Certified Appeal to

Issuance of BVA Decision

BVA 120 days

Average Remand Time Factor Field Station 76 days

(E) Number of members of the Board at the end of FY 1996: 54 members

Number of professional, administrative, clerical,

stenographic, and other personnel employed by the Board

at the end of FY 1997:

TOTAL:

435 employees

491.9 FfE

Number of acting members of the Board during FY 1997:

Number of cases in which such members participated:

50 acting members

7,679 cases

(F)

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 U.S.C. § 7101(d)(3):

Estimated number of cases that will be appealed to the BVA:

Fiscal year 1998: Cases received at BVA: 40,000

Cases added to BVA Docket: 32,000

(A)

Cases received at BVA: 39,700

Cases added to BVA Docket: 32,000

Fiscal year 1998:

(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):

31
(1) Background on BVA Timeliness Pro~iections. The indicator used by the BVA to 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

before the Board, BVA 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 BVA review but are being held

in the field pending BVA action. BVA response time is computed by first determining the Board'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, BVA's estimated response time for FY 1998

is computed as follows:

Estimated 41,600 Decisions in FY 1998 +365 Days = 113.97 Decisions per Day

38,057 Appeals Pending before the BVA (end of FY 1998) + 113.97 Decisions

per Day = 334 Day Response Time on Appeals (end of FY 1998)

(2) Resl2QnseTime Projections: Based upon existing and projected levels of resources, the

estimate ofBVA response time, as given in the Board's FY 1999 budget submission, is 334 days forFY

1998. These response time projections are contingent upon BVA's original appeal receipts estimates

for FY 1998 and FY 1999 shown in paragraph II(A), above.

ESTIMATES OF FUTURE TIMELINESS AND PRODUCTIVITY

Timeliness and productivity estimates are contained in Parts I and II of this report. However, certain

factors could arise to affect those estimates. For example, precedent decisions of the United States

Court of Veterans Appeals may 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 readjudicate a large number of cases already adjudicated, but not yet dispatched

from the Board.

The Board's estimates of future timeliness and productivity can only approximate the impact of

cases remanded to regional offices for additional development. The majority of these cases eventually

are returned to the Board for adjudication, but the Board cannot anticipate when the requested

development will be completed or how many cases will be returned to the Board. The estimates do not

include those cases returned to the Board by the Court of Veterans Appeals for readjudication.

In recent years, the Board's decision productivity and timeliness have been retarded by numerous

factors, including: (1) directives of the Court that require additional time, effort, and resources to

produce appellate decisions~ (2) the necessity to stay the adjudication of certain classes of cases pending

resolution of appeals as a result of decisions of the Court of Veterans Appeals~ and (3) receipt of cases

remanded for readjudication from the Court of Veterans Appeals. It is likely that all or some of these

factors will influence the Board's productivity in FY 1998, but it is not possible to quantify their possible

effects. Additional unanticipated factors could also arise to affect decision production.

32