DEPARTMENT OF VETERANS AFFAIRS

Chairman, Board of Veterans' Appeals

Washington DC 20420

January 19,2000

The Honorable Anthony J. Principi

Secretary of Veterans Affairs

Washington, DC 20420

Dear Mr. Secretary

I respectfully presenthe Fiscal Year 2000 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 2000 and the projected activities of the

Board for fiscal year 2001, as is mandated by 38 V.S.C. §7101(d)(1). 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, in fiscal year 2000, continued on its

road to excellence particularly in product quality and service to this nation's veterans and

their families. Each member of the BVA Team contributed to the overall successes and

accomplishments in fostering not only a commitment to our veterans but to the "One VA"

concept begun over the last two years. Working together with the Veterans Benefits

Administration and the Veterans Health Administration in fiscal year 2000, the Board has

reached beyond regional offices and medical centers to places where veterans live and work.

The Board's videoconference capability attained new heights both in educational quality

seminars with individual adjudicatory persons and in direct contact with veterans in appellate

hearings. I believe the net result has been better and more transparent service to our colleagues

within the VA and to our veterans and their families.

I believe these initiatives clearly demonstrate the Board's contribution to providing

high quality, timely decisions and provides you, the Congress, and our nation's veterans a

clear and comprehensive picture of the Board's activities and unwavering dedication to our

mISSIon.

Very Respectfully,

t .)? tt..L

E. D. Clark

Enclosure
~

TABLE OF CONTENTS

PART I. THE BOARD OF VETERANS' APPEALS

mSTORICAL OVERVIEW 1

SINCE JUDICIAL REVIEW 3

mSTORICAL ORGANIZAllON OF THE BOARD 10

CURRENT ORGANIZAllON OF THE BOARD 11

ORGANIZAllONAL DIAGRAM. 12

ADMINlSTRAnVE ACllVITIES 14

PRODUCllVrrY AND TIMELINESS. 17

ACCESS AND OUTREACH 19

LEGISLATION 20

MEMBERS OF THE BOARD OF VETERANS' APPEALS 21

SELECTION OF BOARD MEMBERS 22

MEDICAL ISSUES 23

ATTORNEY AND AGENT FEE AGREEMENTS 24

REPRESENTATION BEFORE THE BOARD 25

LIAISON ACTIVITIES 26

QUALITY 26

PROFESSIONAL TRAINING 27

RESEARCH MATERIALS 29

PART ll. FY 1999 STATISTICAL DATA

TABLES AND GRAPHS 33

PART ffi. ADDffiONAL INFORMATION PROVIDED PURSUANT TO

STATUTORY REQUIREMENTS

I. 38 U.S.C. § 7101(c)(2) 39

II. 38 U.S.C. § 7101(d)(2) 39

III. 38 U.S.C. § 7101(d)(3) 42

ESTIMATES OF FUTURE TIMELINESS AND PRODUCTIVITY 43

iii
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 U.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 Appeals for Veterans Claims. 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 guaranty, vocational

rehabilitation, dependency and indemnity compensation, and many more. About 90

percent of the claims before the Board involve medical subject matter. In addition,

pursuant to 38 U .S.C. § 5904, the Board is responsible for deciding matters concerning

fees charged by attorneys and agents for representation of veterans before the

Department.

IllSTO RI CAL 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

1
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. 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 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, quasijudicial 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 (SaC),"

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

regulations, and explanation of the rationale underlying the denial of a claim.

Also in 1963, the Board was granted statutory authority to obtain an advisory

opinion from one or more medical experts who were 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 and 1980s were characterized by a significant increase in the number

of appeals, mainly due to appeals filed by veterans 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 (NOD)" 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

2
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 statutory limit on the

number of Board members was removed.

With few exceptions, the number of appeals initiated each year has remained in

the 60,000s from the late 1970s through FY 1999. However, as discussed in this

report, BVA's response time and decisional productivity have undergone dramatic

changes in the 1990s.

SINCE JUDICIAL REVIEW

1988 THROUGH 2000

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

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

(the Court), was the most revolutionary change in the Department's benefit claim

adjudication system since the inception of the Board in 1933. Decisions by the

Court have had a profound effect on the Department's entire adjudication system,

frequently forcing the Board to adapt to new interpretations of veterans' law and to

establish new procedures to meet the continually evolving requirements of the law.

By the end of fiscal year 2000, the body of veterans' common law

developed since judicial review began filled thirteen bound volumes

3
Changes in the law resulting from the Court's decisions, and the consequential

need to make changes in historical VA practices, have challenged the Board's ability

to maintain acceptable levels of response time and decision productivity. As observed

by the Court itself, "... the 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, 9 Vet.App. 535 (1996) (citing Stillwell v. Brown, 6

Vet.App. 291, 303 (1994)). Compliance with these changes has required the Board

to achieve and maintain standards of decision quality at a level well beyond anything

contemplated prior to the enactment of the Judicial Review Act. While judicial

review has resulted in more consistent and detailed decisions being issued by the

Board, those decisions are of necessity much lengthier and require a significantly

greater amount of time to prepare, thereby impacting on the Board's overall timeliness

and productivity.

The introduction of judicial review has had a significant effect on the timeliness

of appellate processing throughout the entire claims adjudication process. Factors

following from the advent of judicial review that have resulted in decreased Board

productivity include:

..J increased remands from the Board to the regional offices to satisfy

the Department's "duty to assist" claimants in developing claims

for VA benefits, as well as to satisfy new procedural "fair process"

requirements created by the Court;

the need to comply with the directives of the Court in a number of

important decisions;

-'J

the need for preparation and procurement of a large number of

medical opinions from sources outside of the Board, as well as time

spent by the Board and its staff researching medical issues through

the use of relevant medical textbooks and treatises;

a large volume of requests for formal hearings before the Board in

Washington, D.C., as well as for hearings before the Board held in

the field, and the concomitant increase in travel time for Board

Members;

v

the added responsibility of attorney fee agreement processing and

reVIew;

4
the need for readjudication of cases remanded by the Court to the

Board;

v the readjudication of cases returned from VA regional offices to

the Board following prior Court and Board remands.

Prior to FY 1992, BVA response time-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-rarely exceeded 150 days. However,

as the impact of Court decisions began to take effect, BVA's response time climbed

steadily from 139 days in FY 1991 to a peak of 781 days at the end of FY 1994. By

the end of FY 1998, BVA's response time was reduced to less than 200 days for the

first time in seven years -197 days. In FY 1999, response time dropped to 195 days.

Response time in FY 2000, increased to 220 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 case, which often made information provided

during the hearings outdated and of limited usefulness by the time the Board began

its review. Travel Board hearings, however, 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 for them to decide cases.

During FY 2000, the Board

conducted over 4,000

personal hearings held at VA

field facilities, the Board's

offices in Washington, DC,

and by videoconference.

5
To better accommodate the growing volume of requests for Travel Board hearings

without incurring a commensurate increase in Board Members' travel time and the

subsequent loss of Board productivity, BVA sought approval to employ emerging

video technology to conduct an electronic form of personal hearings. As a result,

authority to conduct videoconference hearings was authorized by the "Board of

Veterans' Appeals Administrative Procedures Improvement Act of 1994," Pub. L.

No. 103-271. BVA began conducting videoconference hearings in FY 1995 and has

steadily expanded their use each year since then, conducting over 1,000

videoconference hearings in FY 1998, 1,282 in FY 1999, and exceeding 1,320 in FY

2000. The Board anticipates a growth of more than 20 percent for FY 2001.

Videoconference hearings are discussed in more detail on pages 16 and 17.

With respect to representation, 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. In FY 2000, private attorneys represented 6.3 percent of

appellants whose appeals were decided by the Board compared to 5.1 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. As held by the Court in

Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991), where a law or regulation changes

after a claim has been filed or reopened, but before the administrative or judicial

appeal process has been concluded, the version most favorable to the appellant must

be applied unless Congress has provided otherwise or has permitted the Secretary of

Veterans Affairs to do otherwise and the Secretary has so done.

As a result of Karnas, many decisions are returned to the Board for readjudication

by the Court, even in the absence of any factual or legal error contained in the Board's

decision, due to the promulgation of legislative or regulatory changes, or issuance of

new court precedent, subsequent to the date of the Board's original decision on appeal.

A noteworthy example of a court decision that has resulted in the remand of numerous

Board decisions is Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In that decision,

the U.S. Court of Appeals for the Federal Circuit overruled the legal test adopted by

the Court of Appeals for Veterans Claims in Colvin v. Derwinski, 1 Vet.App. 171

(1991), for purposes of determining whether "new and material" evidence has been

submitted to reopen a previously and finally denied claim. The immediate impact of

Hodge was a large number of remands issued by the U.S. Court of Appeals for

Veterans Claims for those Board decisions on appeal that had been decided using

6
the invalidated judicially-created reopening test, instead of the test set forth in

38 C.F.R. § 3.156(a). Since that time, the Court has continued to remand numerous

Board decisions that were decided prior to the issuance of Hodge.

Besides the cases remanded for the reason of changes in the law, the Court also

has begun to remand a significant number of Board decisions for consideration of

arguments that were never made to the Board, and hence were not addressed in its

decision. In Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000), the Federal Circuit

held that the Court of Appeals for Veterans Claims has jurisdiction to hear arguments

presented to it in the first instance, provided it otherwise has jurisdiction over the

veteran's claim. As found by the Federal Circuit, nothing in the statutory scheme

providing benefits for veterans mandates a jurisdictional requirement of exhaustion

of administrative remedies which would require the Court of Appeals for Veterans

Claims to disregard every legal argument not previously made before the Board.

Nevertheless, while the Court of Appeals for Veterans Claims may hear legal

arguments raised for the first time with regard to a claim that is properly before it,

the Federal Circuit indicated in Maggitt that the Court is not compelled to do so in

every instance. Whether to invoke the exhaustion of administrative remedies doctrine

against a party is case-specific, and entails a case-by-case analysis of the competing

individual and institutional interests, including whether the Court of Appeals for

Veterans Claims should use its authority to "remand the matter, as appropriate," to

the Board. In those situations subsequent to Maggitt where the Court has agreed to

hear new arguments raised for the fIrst time on appeal, the result generally has been

that the case is remanded to the Board for consideration of the new arguments in the

first instance. This result occurs because, as held by the Federal Circuit in Hensley

v. West, 212 F.3d 1255 (Fed. Cir. 2000), the Court of Appeals for Veterans Claims

does not have the authority to make de novo findings of fact on appeal. As a

consequence, the Court cannot, in the fIrst instance, decide the facts, and then apply

those facts to the law, in addressing and deciding a new argument on appeal.

Finally, the Court also remands cases to the Board to address laws and regulations

that were not raised or asserted by the appellant, but which may be applicable to the

claim being presented. As held by the Court, 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 stated that even in circumstances where a claim is not well grounded

and, hence, VA's "duty to assist" under 38 U.S.C. § 5107(a) does not apply, VA is

required by 38 U.S.C. § 5103(a) to notify or inform the claimant, in certain

circumstances, of the evidence necessary to complete an incomplete application for

benefits.

7
For the above reasons, as well as problems in the Board decisions themselves

and other factors, the Court's remand rate to the Board has continued to remain at a

relatively high percentage of the small percentage of Board decisions that are actually

appealed to the Court. Similarly, and for reasons directly related to all of the changes

brought about by judicial review and discussed above, the Board's remand rate to

the regional offices 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, has resulted

in a vastly increased workload for the Board and a longer wait for appellants to

obtain resolution of their cases. In addition, in light of the Court's decision in Stegall

v. West, 11 Vet.App. 268 (1998), additional remands from the Court to the Board,

and from the Board to the regional offices, are required in those cases where either

the Board or a regional office has failed to fully comply with the terms of a prior

remand order issued by the Court or by the Board, respectively. As stated by the

Court in Stegall,

The protracted circumstances of this case and others which

have come all too frequently before this Court demonstrate the

compelling need to hold, as we do, that a remand by this Court

or the Board confers on the veteran or other claimant, as a matter

of law, the right to compliance with the remand orders. We

hold further that a remand by this Court or the Board imposes

upon the Secretary of Veterans Affairs a concomitant duty to

ensure compliance with the terms of the remand, either

personally or as [] "the head of the Department." 38 V.S.C.

§ 303.. It matters not that the agencies of original jurisdiction

as well as those agencies of the VA responsible for evaluations,

examinations, and medical opinions are not under the Board as

part of a vertical chain of command which would subject them

to the direct mandates of the Board. It is the Secretary who is

responsible for the "proper execution and administration of all

laws administered by the Department and for the control,

direction, and management of the Department." 38 V.S.C. § 303.

8
Moreover, the Secretary is by statute both the one to whom a

veteran may appeal an initial denial as a matter of right

(38 U.S.C. § 7104(a)), and a party, represented by the General

Counsel, to every appeal before this Court (38 U.S.C. § 7263(a)).

Finally, we hold also that where, as here, the remand orders of

the Board or this Court are not complied with, the Board itself

errs in failing to insure compliance. While it is true that where

an appellant has not been harmed by an error in a Board

determination, the error is not prejudicial (see 38 U.S.C.

§ 7261 (b) ("Court shall take due account of the rule of prejudicial

error")O], the Court cannot say, based on the record before it,

that the appellant here has not been harmed. The Court takes

this opportunity to remind the Secretary that the holdings of

this decision are precedent to be followed in all cases presently

in remand status.

In addition to the above-mentioned cases, other Court rulings also have affected

how the Board adjudicates cases, making BV A decisions lengthier and more complex

and formal than they were in the past. For example, Board decisions now include

detailed supporting "reasons or bases" as well as candid assessments of the credibility

of lay testimony. Furthermore, not only must the Board now address the specific

matter brought before it on appeal, but in doing so oftentimes must review or

reconsider decisions that were previously considered to have been finally decided.

For example, in Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), the Federal Circuit

held that when there is a breach of the duty to assist in which the V A fails to obtain

pertinent service medical records (SMRs) specifically requested by the claimant,

and fails to provide the claimant with notice explaining the deficiency, the claim

does not become final for purposes of appeal. In other words, the failure to obtain

the SMRs vitiates the finality of the decision for purposes of direct appeal and results

in the claim remaining open and pending. The impact of Hayre is that the Board can

no longer simply assume the finality of prior final decisions issued long ago when

addressing, for example, claims to reopen or claims of clear and unmistakable error

(CUE), but instead must address on its own motion the question of whether there is

finality with respect to the prior determination.

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 change eliminated the disadvantage previously

9
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. As a result of a j oint effort by B VA and the Veterans

Benefits Administration (VB A) in FY 1997, and FY 1998, a single computerized

system for the docketing, tracking, and managing of appeals was adopted. The

Board's docketing procedures further improved during FY 1999, as legislation was

enacted that required all Travel Board hearings to be conducted in docket order

sequence.

IllSTORICAL 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

Chairman, who is "directly responsible to the Secretary," as provided by 38 U.S.C. §

7101(a). The Chairman is appointed by the President of the United States with the

advice and consent of the Senate and serves a six-year term at the Assistant Secretary

level. Pursuant to 38 U.S.C. § 7101(a), the Board is authorized to consist of a

Chairman, a Vice Chairman, 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.

(B VA' s organization chart is shown on page 12.)

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 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.

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

10
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 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 panels, usually consisting of three members issue decisions.

BV A 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.

Near 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 new organizational structure reduced administrative overhead

and allowed sufficient latitude for different, even competing, managerial styles to be

used by similarly staffed te~ms. 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 without exceeding its FfE limit. At the heart of the

realigned Board were four "decision teams."

The four decision team arrangement continues to form the true line component of

the Board. Each team contains 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 AL2level, 15 Board members (two of whom are designated

as Chief members), approximately 60 to 70 attorneys, and 18 administrative personnel

11
12

tfi
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 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. This arrangement made possible a reduction

in the number of required administrative positions and a commensurate increase in

the number and relative proportion of attorney positions, compared with the Board's

pre-decision team structure.

BVA's administrative personnel perform 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. Two Chief Board members assist each DVC in

the supervision of the professional staff.

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. A centralized quality review process, discussed on page

28, insures consistent adherence to Board-wide criteria in six areas deemed essential

to quality decisions.

13
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, cases involving Travel Board hearings are assigned to

the Board member who conducted the hearing 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 VBA's senior adjudicatory

staff and rating specialists, and has resulted in better communication and case control.

Efforts to improve direct communication between Board members and adjudicators

in the field are discussed on page 17.

The Board's 1995 realignment did not change the basic procedures involved in

the preparation of a draft decision for Board member review or most of the routine

tasks involved in the processing of an appeal. DVCs are responsible for the

management of their decision teams' caseload and for 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 workstations and

submit 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 is mailed to the appellant. A copy of

the decision is mailed to an appellant's representative if one has been designated.

A staff medical adviser assists Board members by conducting medical research

and by providing training to staff counsel on medical issues. In addition, the Board

sometimes seeks advisory medical opinions from a number of different sources,

including the Under Secretary for Health, before rendering decisions in cases

involving complex or unusual medical issues. These advisory medical opinions are

discussed in detail on pages 23 and 24.

AD MINIS TRA TIVE A CTIV~

Throughout the 1990s, the Board has introduced numerous administrative

to meet the challenges presented by judicial review and to improve its

service to veterans and their families. Among the initiatives undertaken prior to FY

1998 were:

1991

1992

1993

complete revision of decision analysis and format

use of single Board member hearings as opposed to panel hearings

introduction of a "trailing" hearing docket

4
1993

993

994

improvements in direct responses to customers and responses to

Congressional and other inquiries

consolidation of all Washington, DC, employees into one building

reduction of the time-consuming restatement of the history of each

case contained in the "Introduction" section of Board decisions

1994

1995

1995

1997

1998

1999

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

introduction of videoconference for the conduct of personal hearings

numerous customer service initiatives, including publication of a plain

language pamphlet entitled, "Understanding the Appeal Process"

made BVA decisions and, "Understanding the Appeal

Process," available to the public on the World Wide Web

adopted single appeals tracking system for use by BVA and the

Veterans Benefits Administration

signed a Memorandum of Understanding with VBA for a mutual

methology of enhancing the Videoconference capability of both B VA

andVBA

introduced a revised VA Form 9, "Appeal to the Board of Veterans'

Appeals."

enhanced VACOLS capability to track all Travel Board and

Videoconference hearing requests both at the Board and at individual

regional offices and access this information as a V ACOLS report

enhanced the Board's website and updated the pamphlet

"Understanding the Appeals Process"

2000

During FY 2000, the Board coordinated three additional significant releases for

a total of twenty-two updated versions of the Veterans' Appeals Control and Locator

System (VACOLS) to allow greater access and added capability for data entry and

data sharing for adjudicatory personnel in regional offices. VACOLS was developed

by the Board, greatly enhanced in cooperation with VBA, and first adopted as the

Department's appeals tracking system in FY 1997. This unified tracking system

provides important Department-wide benefits, including:

Improved accuracy and timeliness of Departmental reports

and appeals status determinations;

v

5
~

~ Significantly reduced exchanges of appeals-related paper

between BV A and VBA;

~ Reduced administrative overhead and operating costs associated

with appeals for both BV A and VBA;

--J Improved appeals-related workload management and planning

information.

-.J Continual Special Interests Tracking of all issues.

-.J Access and multiple sorting capability for both BV A and VBA

Disposition reports.

Through VACOLS, VBA personnel

can add appeals to BVA's docket, close

out appeals resolved in the field, indicate

appellants' requests for BVA hearings,

indicate when cases have been developed

enough to permit the holding of BVA

hearings, and view or download Board

decisions and other documents attached to

VACOLS records. In FY 1999, the Board

enhanced V ACOLS by extending RO

capabilities (e.g. permitting more RO

inquiries and annotations) to include CUE

queries, address updates, videoconference

hearing annotations, NOD, and issue

tracking, adding issues on remand, and a

print button. VSO representatives working

at regional offices now also have the ability

to connect to the B VA computer network.

As previously mentioned, the Board conducted its fIrst videoconference hearing

in FY 1995. Every year since then, BVA has expanded its use of video technology,

for both its personal hearing application and its use as a medium for the conduct of

seminars and information exchanges between BVA and VA regional offices. A

significant milestone was reached in September 1998, with the signing of a

Memorandum of Understanding (MOU) between the Board and the Veterans Benefits

Administration (VBA) that articulated the commitment of both organizations to Health

16
Administration (VHA) clinics where VBA staff have an ongoing presence. New

milestones continued as the Board conducted more than 1,350 appellate

videoconference hearings in FY 2000. The Board will to continue to reach additional

milestones in FY 2001.

Videoconference seminars are employed regularly as a vehicle for improving

direct communications between Board members and regional office adjudication

personnel. This methodology has demonstrated great potential as a practical way to

conduct seminar and information exchanges between BVA and the field on topics

such as remand reasons, VA's "duty to assist" requirements, determining secondary

service connection, and evaluating the adequacy of medical exams for claim

adjudication purposes, among others. Anecdotal feedback regarding these sessions

has been overwhelmingly positive. This type of seminar and two-way communication

provides a real-time alternative to the more typical classroom environment, allowing

"face to face" information exchanges without the cost or, more importantly, the time

required for travel to and from geographically distant locations. With

videoconference,

Board members are

able to move down

the hall, literally,

instead of traveling

across the country to

conduct hearings or

seminars. The

educational value of

these seminars is best

seen in the consistent

drop in the remand

rate at those offices

that take advantage of

these monthly

meetings.

PRODUCTIVITY AND TIMELINESS

The success of the Department's efforts to improve the timeliness and efficiency

of appeals processing was demonstrated in June 1998, with the end of the appeals

"case canup" procedure. Under the callup arrangement, which had been in effect

since February 1994 as a result of the then growing backlog of appeals awaiting

review by the Board, claims folders for docketed appeals were retained by field

17
offices until BVA requested their transfer to the Board. Retaining claims folders at

VA field offices afforded appellants access to their files during the long waiting

period that existed between the time their appeals were certified in the field as ready

for BVA's review and the time the Board could actually review them. The

improvements in productivity and timeliness of the past several years markedly

reduced the appeals backlog and rendered the callup procedure unnecessary. The

number of cases awaiting review by the Board was reduced from more than 60,000

at the end ofFY 1996, to 20,500 at the end ofFY 2000.

During FY 2000, the Board and VBA continued to refine the system-wide appeals

timeliness measure, adopted in FY 1998, which represents an important yardstick

for evaluating the timeliness of appeals processing. This measure, called "appeals

resolution time," is defined as the average length of time it takes the Department to

process an appeal from the date a claimant files a Notice of Disagreement (NOD)

until a case is resolved, including resolution at a regional office or by issuance of a

final, non-remand, decision by the Board.

Timeliness measures historically used by BVA typically account only for that

time from the filing of a Substantive Appeal (VA Form 9) until the issuance of a

decision by the Board. Appeals resolution time takes into account cases resolved in

the field at the NOD, Statement of the Case, or VA Form 9 stages through withdrawal,

dismissal, award of benefits or abandonment, as well as cases resolved by final,

merits (i.e., non-remand) decisions issued by the Board and cases resolved in the

field while in remand status. Actions taken on cases subsequent to a remand to the

Department by the Court of Appeals for Veterans Claims are not included, as a

significant portion of the history of such cases is spent outside the Department'sjurisdiction.

Appeals resolution time in a "One VA" concept provides appellants, members

of Congress, government officials, VA management, and other interested parties a

comprehensive and meaningful indication of the average length of time to complete

the entire appeal process, rather than just that portion of the process performed within

specific organizational boundaries. Ongoing refinements during FY 2000, allow

V ACOLS to serve as the sole source of data used to calculate appeals resolution

time. In fiscal year 2000, the Board and VBA had an appeals resolution time of 682

days compared to 745 days in fiscal year 1999. Together, the Board and VBA have

established an appeals resolution time goal of 365 calendar days.

18
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 BVA'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.l!a.gov/appeals/index.htm

Board decisions issued in calendar years 1994, through 1999, and the fIrst three

quarters of fiscal year 2000, are also available in searchable text format through

VA's Web pages. The Board expects to make all of its fiscal year 2000, decisions

available through the World Wide Web early in calendar year 2001. The URLs for

BVA's decisions are:

~

1994

1995

1996

1997

1998

1999

2000

:u:RL

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

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

http://www. va. gov/vetapp96/vetindex. htm

http://www. va. gov/vetapp97/vetindex. htm

http://www. va. gov/vetapp98/vetindex. htm

http://www. va. gov/vetapp99/vetindex. htm

http://www. va. gov/vetappOO/vetindex. htm

As a service to veterans and the

general public, an electronic mail

(e-mail) link to the Board, which

can be accessed from a number of

the Department's Web pages was

established in FY 1996. In FY

1998, more than 400 e-mail

inquiries were received and

answered by the Board. By the end

of FY 1999, this number increased

over 100% as the Board received

and answered over 820 inquires in

the fiscal year. During FY 2000,

the Board answered in excess of

1,050 inquiries.

DEP ARThlENT OF VETERANS AFFAIRS

: .Board of Veterans' Appeals

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Appeal PrOC"" "In it. we -~d to prooide cle~. --~ '0'" most co,,-, ast.d

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19
LEGISLATION

Public Law 105-111, enacted on November 21, 1997, provides VA benefit

claimants and appellants the right to request a review of prior VA claim and appellate

decisions based on an allegation of clear and unmistakable error (CUE) on the part

of the Department. This legislation added an additional decision-making function to

the Board's mission, as claims of clear and unmistakable error are matters of original

jurisdiction for BV A, rather than appeals of determinations made elsewhere within

the Department.

Following an opportunity for notice and comment, V A published regulations

governing the adjudication of CUE claims in FY 1999, codified at 38 C.F.R.

§ 20.1400-20.1411 (2000). These rules were immediately in the U.S. Court of Appeals

for the Federal Circuit. On December 8, 2000, that Court upheld virtually all of

VA's rule. Disabled American Veterans v. Gober, -F.3d -, Nos. 99-7061, -

7071, -7084, -7085 (Fed. Cir. Dec. 8,2000).

In FY 2000, the Board decided 536 CUE motions. Of those, 23 were allowed,

434 were denied, 60 were dismissed and 19 were withdrawn. At the end of the year,

208 motions were pending decision.

Each Deputy Vice Chairman spends many hours

reviewing, planning and allocating the Decision's Team's Workload

20
MEMBERS OF THE BOARD OF VETERANS' APPEALS

At the close of FY 2000, the following 59 individuals, 27 of whom are veterans,

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

2000, no Board member appointments were awaiting Presidential approval.

MOEHLMANN, HOLLYE.

MONROE, JACQUELINE E.

MULLEN, ANDREW J.

ORMOND, JOHN E.

PEEVY, ALAN S.

PELLETIER, RENEE M.

PHll...IPP, ROBERTD.

PHll...LIPS, NANCY I.

POWELL, URSULA R.

REGAN, ROBERTP.

RICE, WARREN W., JR

ROBERTS, JO S.

ROBIN, NANCY R.

(DEPUTY VICE CHAIRMAN)

RUSSELL, CRAIG P.

SABULSKY; MARYM.

(DEPUTY VICE CHAIRMAN)

SCHWAR1Z, HOWARD N.

SENYK, GEORGE R.

SHARP,JANEE.

SHERMAN, IRIS S.

SHUFELT, GORDON H.

SINGLETON, DEBORAH W.

SPICKLER, DAVID C.

STANDEFER, RICHARD B.

(VICE CHAIRMAN)

S ULLIV AN, LA WREN CE M.

SULLIVAN, ROBERT E.

SYMANSKI, CHARLES W.

TOBIAS, CONSTANCE B.

TOBIN,LEOW.,ill

WILKINS, STEPHEN L.

WILLIAMS, RICHARD F.

AGUAYO-PERELES, JOAQUIN

(DEPUTY VICE CHAIRMAN)

BOHAN, BARRYF.

BOSCH, RONALD R.

BRAEUER, WAYNE M.

BROWN, DEREK R.

BRYANT, ANNAM.

CALLAWAY, BETflNA S.

CLARK, ELIGAH D.

( CHAIRMAN)

COHN, STEVENL.

COPELAND, BARBARA B.

DANNAHER, THOMAS J.

DAY, JONATHANE.

DURKIN, S HANE A.

FLOWERS, FRANKJ.

FRANK, RICHARD B.

GALLAGHER, MARY

GICK, GARY L.

GOUGH, JEROME F.

GREENSTREET, MARK W.

HALSEY,MARKF.

HINDIN,MARKD.

HOGEBOOM, CHARLES E.

(DEPUTY VICE CHAIRMAN)

HYMAN, BRUCEN.

JORDAN, VICKY L.

KANNEE, BRUCE N.

KELLER, STEVEN L.

(SENIOR DEPUTY VICE

CHAIRMAN)

KENNEDY, SUSAN L.

LYON, MICHAELD.

MARTIN, JEFFREY J.

2
SELECTION OF BOARD MEMBERS

As previously noted, Pub. L. 105-368, signed into law by the President on

November 11, 1998, requires that Board members be attorneys. As a practical matter,

no non-attorneys have served as members of the Board since 1994. The appointment

of physicians as members of the Board that was practiced prior to 1994 is discussed

in the next section of this report.

The selection process for the limited number of Board member positions 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 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 demonstrated the requisite level of knowledge and expertise to provide the

22
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.

MEDICAL ISSUES

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

former 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 fairness and impartiality of utilizing the opinions of the Board's

medical advisers. Since the announcement of Austin, the Board has not utilized

opinions from its own 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). Consequently, absent a change in the law, it is not

likely that the Board will return to the practice of utilizing the opinions of BVA

medical advisers in adjudicating appeals.

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, discussed

on pages 29 through 31, have been greatly expanded to help meet this need.

23
Because BV A could no longer base its decisions on its own medical expertise,

in recent years the Board has increasingly relied on opinions provided by independent

medical experts to resolve specific medical questions and to establish the possibility

or likelihood of cause and effect contentions raised in appeals. Typically, opinions

have been sought from faculty members of leading medical schools or from Veterans

Health Administration (VHA) physicians. Many appeals have been remanded to

V A regional offices to obtain medical examinations in addition to these advisory

opinions.

Advisory opinions obtained from VHA physicians have typically been provided

a much more timely manner than those obtained from non- VA physicians and

have been well-reasoned, succinctly stated, and fully responsive to the

questions asked by the Board. Additionally, the thoroughness and specificity of

many VHA advisory opinions have provided sufficient information to allow BVA to

issue final decisions without the need to remand cases to regional offices to obtain

new medical examinations. In cases where a medical opinion is likely to provide

persuasive argument concerning critical medical issues, it is likely that increased

utilization of VHA advisory opinions will result in a significant reduction in the

number of remand decisions that would be issued in the absence of such opinions.

The Board requested 79 opinions from non-VA medical experts under 38 V.S.C.

§ 7109 in FY 2000, compared with 100 opinions the previous year. In addition, the

Board requested 266 advisory opinions from medical experts from the Veterans Health

Administration (VHA) in FY 2000, compared with 482 in FY 1999.

ATTORNEY AND AGENT FEE AGREEMENTS

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

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

also gives BVA the authority to review fee agreements on its own motion or upon

motion of a party to the agreement.

In FY 2000, the Board received 1,266 fee agreements for filing and review, an

increase of 44 percent over FY 1999, and 59 percent over FY 1998. The number of

fee agreements received by the Board was more than five times the number received

in FY 1995. Most problems concerning fee agreements were handled, as in the past,

through correspondence with attorneys.

24
Under the authority of 38 C.F.R. § 20.609(i), the Board issued 18 motions for

Board review of fee agreements, and one was filed by an attorney. At the end of the

fiscal year, no motions were pending. In FY 2000, the Board issued 27 decisions on

such motions. The Board ruled that the attorney could not charge a fee in 15 cases;

it ruled that the attorney could charge a fee in four cases; six motions were dismissed;

and two motions were withdrawn.

Most 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). However, on August 14,

2000, the U.S. Court of Appeals for Veterans Claims held that such decisions should

be made in the first instance by VA's regional offices, not the Board. Scates v.

Gobel; 14 Vet. App. 62 (2000) (en banc). Accordingly, as of August 14, 2000, the

Board ceased making original decisions in these cases.

During FY 2000, 195 cases involving payment of fees by VA from past-due

benefits were referred to the Board, and 204 were completed. Of the completed

cases, 98 ordered payment to the attorney; 54 held that the attorney could not be paid

directly by VA; 7 cases were vacated; and 45 cases were dismissed. Of the dismissed

cases, 43 were dismissed after August 14, 2000, because of the Scates decision.

In December 1997, VA published in the Federal Register a notice of proposed

rulemaking that would end the practice of paying attorney fees out of past -due benefits.

At the end ofFY 2000, that proposed rulemaking was still pending.

REPRESENTATION BEFORE THE BOARD

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. In FY 2000, 84.7 percent

of appellants were represented by one of the accredited service organizations (85.0

percent in FY 1999), 6.4 percent were represented by an attorney or agent (5.2 percent

in FY 1999), and 8.9 percent were not represented (9.8 percent in FY 1999). (See

table on page 34, Part n.)

25
LIAlSONAcnv~

During fiscal year 2000, the Chairman 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. Topics included an overview of the Board's

future objectives, to include improvements in Board productivity and timeliness,

validation of the Board's FY 2000 budget, and the emerging use of videoconference

appellate hearings.

During FY 2000, the Chairman addressed or participated in more than ten

conventions, seminars, and award ceremonies held by national and state veterans'

service organizations, and the active duty forces. National organizations included

Disabled American Veterans, The American Legion, and the Montford Point Marine

Association. State conferences included the Texas Veterans Commission, the Georgia

Department of Veterans Affairs, and the Alabama Department of Veterans Affairs.

The Chairman also had the opportunity to present the principal address at the Salisbury

National Cemetery, Salisbury, North Carolina, and for the "African-American History

Month Kick-off" and the "Take our Children to Work" ceremonies at VA

Headquarters.

The Board responds directly to requests for information and assistance from

veterans, their representatives, and Members of Congress and their staffs. The Deputy

Vice Chairman of each Decision Team and their administrative personnel handled

most of the 21,292 requests during FY 2000 -a decrease from the 24,808 requests in

FY 1999. The Chairman also responded to correspondence from numerous appellants

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

government officials, and provided written responses to 2,537 Congressional inquiries

in FY 2000, reflecting a small decrease from the 2,562 requests in FY 1999.

QUALITY

During FY 2000, the Board continued to improve the systematic and objective

approach to quality assessment that was initially begun in FY 1998. On a daily

basis, Board members and senior counsel evaluate and "score" a statistically valid

sampling of completed BV A decisions that have not yet been released from the Board,

26
as well as all decisions brought to the Board's attention through motions for

reconsideration or remands from the Court of Appeals for Veterans Claims. Sampled

decisions are reviewed and assessed with respect to quality using six discrete criteria:

Issues -identify and address all issues, either expressed or

inferred;

Evidence -account for all evidence, both in favor of or against

the claim;

-..j

Laws and Regulations -cite and set forth all applicable laws and

regulations;

Reasons and Bases -coordinate the facts of the case with

the law, and clearly explain how the decision was reached;

"" Due Process -address all technical aspects of due process;

Format -meet basic format requirements, such as grammar, spelling,

decision structure, and statutory requirements.

These assessments allow the Board to objectively evaluate the quality of its

decisions and provide meaningful training for B VA counsel in specific areas

where a need for improvement is demonstrated.

PROFESSIONAL TRAINING

Under the direction of the Vice Chairman, a committee of key personnel again

oversaw the Board's intensive training program for attorney staff and Board members

during FY 2000. The committee's 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 BVA to

accomplish its mission to enter timely, consistent, and high quality

appellate decisions on behalf of the Secretary.

27
The complexity of today's veterans' law requires intensive training of new

counsel before they can become fully contributing decision team members. Newly

hired attorneys begin their participation in BVA's professional training program on

their first day of orientation at the Board. The program, developed in cooperation

with the employees' bargaining unit, includes instruction in a variety of functional

areas, including appeals development and adjudication, veterans' law, the hearing

process, medical issues, and computer word-processing and legal research 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, such as

those discussed in the next section.

The Board's training program provides for professional growth and skill

development throughout the course of an attorney's career with BVA. A nonlinear

progression through a wide variety of subject areas is taken so that attorneys, together

with their supervisors, can determine what topic or type of training would be most

beneficial at any given time in an employee's development. Although much of the

instruction is provided by Board staff members, outside training resources are also

used to augment the curriculum. For example, to increase their understanding of the

claim and appeal development activities performed by regional office and Veterans

Health Administration personnel, BVA attorneys participate in off-site training and

seminars, including programs held at the Veterans Benefits Administration's Training

Academy in Baltimore, Maryland.

By coordinating its decisional quality review and counsel training programs,

the Board is able to offer training in those topics or processes where and when it is

needed most. This direct linkage between BV A's flexible training schedule and the

Board's quality review program, in which completed decisions undergo objective

evaluations with respect to quality in six different areas on a daily basis, ensures that

the instruction presented to B VA's attorneys is both meaningful and timely.

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.

28
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 levels of

productivity and quality.

Members of the Decision Teams participated in a myriad of professional

developmental areas including:

.The Digital Dictate trial program designed to permit voice-to-text

production of decisions.

.The Deputy Secretary's "One VA Mentoring Program."

.The National Judicial College, Reno, Nevada.

.The Western Management Development Center, in Denver, Colorado.

.The Management Development Center, Shepherdstown, West Virginia.

.The Leadership School for a Democratic Society, Charlottesville, Virginia.

.Continuing Legal Education (CLE) courses at the new Department of

Justice National Advocacy Center (NAC) in South Carolina.

.The "One VA" conferences in Pittsburgh, Pennsylvania, St. Louis,

Missouri, and Vienna, Virginia, serving as participants and facilitators.

.An "Attorney Leadership Seminar" at George Washington University in

Washington, DC.

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.

29
Other departmental and governmental research resources are available as well,

including those of the VBA Training Academy, the Office of Personnel Management

schools, and the National Judicial College. The Internet and the Department's

Intranet, both of which were made available to BVA employees during FY 1998,

have been enhanced in FY 2000, to permit access to a vast array of useful reference

material.

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

evidenced by B VA's sophisticated computer network and the installation of a personal

computer at every employee's workstation. A variety of applications and productivity

aids are available for all BV A 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 the

formulation of search "queries."

Research tools available on the Board's computer network, include indexes and

text files that are compiled in either databases or word processing files. The research

data bases allow considerably more sophisticated searches than those typically

associated with collections of word processing documents. 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, Chairman's numbered

memoranda, and videotaped training lectures are also available.

The Index of Veterans' Benefits Law (Annotated) was developed to facilitate

legal research and to assist with the preparation of Board decisions. It includes

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

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

Court, and VA's Office of the General Counsel. It is available to Board employees

and veterans' service organization representatives connected through the Board's

computer network, and has 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.

30
The Board's Text Files contain information and reference language useful in the

preparation of draft decisions. Included in these files are: Slip opinions of the U.S.

Court of Veterans Appeals from 1990, to the present; BVA decisions since 1993;

and Title 38 of the Code of Federal Regulations, which is 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 to BVA attorneys. Precedent opinions of VA's

Office of the General Counsel since 1993, and Chairman's numbered memoranda

since 1991, are available in a word processing format. Several VBA resource items,

including directives, training guides, and manuals, are also provided in a searchable

format.

Still other research tools and training materials prepared and updated by BVA

personnel include: "Headnotes," which are summaries of selected opinions of the

V .S. Court of Veterans Appeals; information concerning military awards and

decorations; a discussion of attorneys' and agents' fees under 38 V.S.C. § 5904;

medical abbreviations; and a BVA training guide on hearing loss disability, tinnitus,

and neurology.

From 1994 through 2000, BVA's decisions were made available to the public

on CD-ROM. Board decisions issued in calendar years 1996, 1997, 1998, and 1999,

along with the Veterans Benefit Law Index were available for purchase from the

Government Printing Office on CD-ROM. To better insure privacy interests, the

Board has discontinued publishing decisions on CD-ROM and instead all decisions,

in redacted form, are available through VA's Web pages. Additionally, as discussed

on page 18, all Board decisions issued in calendar years 1994 through 1999, and the

first three quarters of 2000, are available in searchable text format through the WorldWide Web. This public access to Board decisions represents an enormous potential

reduction of research time for appellants, attorneys representing appellants, appeal

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

31
PART II

FY2000 STATISTICAL DATA

During FY 2000, the Board issued 34,028 decisions. This total represents a 9.0

percent decrease from FY 1999, when 37,373 decisions were issued. The decrease is

primarily a result of (1) a higher percentage of final, non-remand decisions (70.1 percent) than was issued the previous year (63.7 percent), and (2) a heightened emphasis

on decisional quality. Prior to June 30, 1999, BVA and VBA agreed to track cases by

category of appeal. The chart below reflects the statistics for FY 2000.

Category Total Allowed Remanded Denied Other

42

30,966

160

45

96

269

1,088

93

20

674

575

1

8,522

6

3

6

18

158

10

1

114

122

9

31

1 2,460

99

30

59

138

563

46

12

433

209

4

626

5

2

2

13

29

1

1

123

8

Burial Benefits

Compensation

Education

Insurance

Loan Guaranty

Medical

Pension

VR&C

Other Programs

BV A Original Jurisdiction

Multiple Program Areas

Totals 34,028

100

8,961

26.3

10,173

29.9

14,080

41.4

814

Percentage 2.4

33

,3

1

3

2

5

5

1

2

0

3

3

3

6

8

0

0

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0

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.EY Decisions Allowed Remanded Denied Q~

1996 33,944 19.9% 43.7% 30.8% 5.7%

1997 43,347 16.7% 45.2% 36.6% 1.5%

1998 38,886 17.2% 41.2% 39.5% 2.0%

1999 37,373 22.1% 36.3% 39.8% 1.8%

2000 34,028 26.3% 29.9% 41.4% 2.4%

IBVAallowances do not necessarily connote regional office adjudicatory errors since

BVAreviews regional office decisions on a "de novo" basis.

2 A Remand by B VA to a regional office does not necessarily connote a regional office

error

FY 1997

43,347

FY1998

38,886

FY1999

37,373

FY 2000

34,028

32,916

44,110

39,657

334

492

88.1

$839

1,297

4,564

233

32,034

39,851

21,013

197

483

80.5

$965

1,255

2,469

1,151

35,722

39,161

20,012

195

478

78.2

$1,062

917

3,512

1,282

32,555

36,500

20,521

220

468

72.8

$1,219

599

2,505

1,324

Decisions

Case Receipts.

Added to Docket

Received at BV A

Cases Pending..

Response Time

FTE

Decisions per FTE

Cost per Case

Hearings -VACO

Hearings -Field

Hearings -Video

* Case receipts composed of: (1) new cases added to BVA's docket; and (2) cases received at

BVA, which consist of all cases physically received at the Board, including original appeals

and 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).

** Pending figures include certified appeals pending in the field awaiting BVA hearings, as

well as cases pending at the Board.

35
~

700

600

500

400

300

200

100

0

FY 96 FY 97 FY 98 FY 99 FY 00 FY 01'

FYOI 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 preceeding one-year time frame.

50000

45000

40000

35000

30000

25000

20000

15000

10000

5000

0

FY 96 FY97 FY 98 FY 99 FY 00 FY 01*

FY 01 Estimated

36
FY96 FY97 FY98 FY99 FYOO FYO1

FY 01 Estimated

1400

1200

1000

800

600

400

200

0

FY99 FYOO FY 01 .

FY96 FY97 FY98

FY 01 Estimated

37
PART ill

ADDITIONAL INFORMATION PROVIDED PURSUANT TO

STATUTORY REQUIREMENTS

L 38 V.S.C. § 7101(c)(2)

The following information is provided in accordance with the requirement of

38 U.S.C. § 7101(c)(2) to report, in terms of full-time employee equivalents (FTE),

the number of acting Board members designated under 38 U.S.C. § 7102(c)(1)(A)

during the preceding year. Seventy-nine attorneys served as acting Board members

from time to time during FY 2000 for a total of 5.4 FIE. The Board uses a system

of written designations of acting Board members by the Chairman to ensure adherence

to the statutory requirements regarding the use of acting Board members.

II. 38 U.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.

39
The following estimates of new Notices of Disagreement(NOD) received in the

field are provided to BVA by the VBA. In FY 2000, this figure will be retrieved

directly from the information contained in VACOLS. Many of the cases for which a

NOD is filed are resolved at the regional offices and, as such, never reach the Board.

Estimated Number of New Notices of Disagreement Received in the Field

FY97

6,213

5,332

5,025

4,978

5,329

5,648

6,087

5,992

5,198

5,574

5,466

5,724

FY98

5,787

4,737

4,877

4,448

4,801

5,777

5,878

5,464

6,061

5,783

5,928

5,832

FY99

4,480

4,055

4,298

4,450

5,254

6,837

6,191

5,850

5,063

4,554

4,888

4,378

FYOO

4,963

4,736

4,526

4,723

5,171

5,865

4,851

5,240

5,205

5,157

5,224

4,381

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 66,566 65,373 60,318 60,042

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.

Cases received at the Board include original appeals forwarded to BVApursuant

to procedures established for appellate review, 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 United States Court of

Appeals for Veterans Claims, 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 with the VA field offices that adjudicated their

original claims, typically a VA regional office. New appeals received in the field

are then added to the Board's docket by the receiving VA regional office using the

shared information system technology, VACOLS, described on pages 15 and 16.

40
Many new appeals are resolved in the field without ever reaching B VA, including

many that had already been placed on the Board's docket. Those appeals that are not

resolved in the field are certified by the regional offices as being ready for the Board's

review upon completion of all case development, and the associated claims folders

are physically transferred to the Board, except those cases in which a Travel Board

or a Videoconference hearing has been requested.

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

(A) Number of cases appealed to BV A during FY 2000:

Cases received at BVA:

Cases added to BVA Docket:

36,500

32,555

(B) Number of cases pending before B VA at the start of FY 2000:

Number of cases pending before BVA at the end ofFY 2000:

21,013*

20,521*

* 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 2001:

Cases Received at BV A New Appeals (VA Form 9) Filed

:EY.2.a

3,639

3,215

3,182

2,502

2,879

3,552

3,726

2,788

3,578

3,675

3,520

~

~

3,122

3,312

3,655

2,958

3,201

3,798

3,105

3,354

3,533

2,900

3,537

.2 Q.8Ji

EYQQ

2,945

3,265

2,839

2,587

3,383

3,501

2,612

3,364

3,265

2,675

3,560

2...:1.Q.4

fi.2R

3,634

2,176

2,408

2,332

2,607

3,894

2,558

2,196

2,578

2,540

2,489

~

EY22

2,885

2,853

3,018

3,048

2,876

3,200

2,632

3,721

2,883

2,843

2,921

2M.a

EYQ.Q

2,447

2,450

2,446

2,576

2,761

3,266

2,807

3,051

2,939

2,489

2,938

~

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 39,851 39,161 36,500 32,034 35,722 32,555

41
.

(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 Field Station

to Statement of the Case Issuance

84 days

Statement of the Case Issuance

to Substantive Appeal Receipt

Appellant 60 days

Substantive Appeal Receipt to Field Station 657 days

Certification of Appeal to B VA

Receipt of Certified Appeal to

Issuance of B VA Decision

BVA 172 days

Field Station 158 days

Average 

Remand Time Factor

Number of members of the Board at the end ofFY 2000:

Number of professional, administrative, clerical,

stenographic, and other personnel employed by the

Board at the end of FY 2000:

59 members

461 employees

Number of acting members of the Board during FY 2000: 79 acting members

Number of cases in which such members participated: 4,371 cases

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):

(A) Estimated number of cases that will be appealed to the B VA:

Fiscal year 2001: Cases received at BVA: 37,000

Cases added to BVADocket: 32,000

37,000

32,000

Fiscal year 2002 Cases received at BVA:

Cases added to BV A Docket:

42
(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 U.S.C. § 7101(a):

(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 2001 is computed as follows:

Estimated 34,150 Decisions in FY 2001 + 365 Days = 93.56 Decisions per Day

21,871 Appeals Pending before the BVA(end ofFY 2001).:;. 93.56 Decisions

per Day = 234 Days Response Time on Appeals (end of FY 2001)

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

resources, the estimate of BVA response time, as given in the Board's FY 2002

budget submission, is 234 days for FY 2001. These response time projections are

contingent upon BVA's original appeal receipts estimates for FY 2001 and FY 2002

shown in paragraph ill(A), above.

ESTIMATES OFFUT URE 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 Appeals for Veterans Claims 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.

43
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 Appeals for Veterans Claims 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 Appeals for Veterans Claims; and (3) receipt of

cases remanded for readjudication from the Court of Appeals for Veterans Claims. It is

likely that all or some of these factors will influence the Board's productivity in FY 2001,

but it is not possible to quantify their possible effects. Additional unanticipated factors

could also arise to affect decision production.

44