DEPARTMENT OF VETERANS AFFAIRS

Chairman, Board of Veterans' Appeals

Washington DC 20420

The Honorable Togo D. West, Jr.

The Secretary of Veterans Affairs

Department of Veterans Affairs

810 Vermont Avenue, N. W.

Washington, DC 20420

Dear Mr. Secretary:

I respectfully present the fiscal year 1999, Report of the Chairman,

Board of Veterans' Appeals, for inclusion in your fiscal year 2001, budget

submission to Congress. Parts I and II of this report describe the Board's

activities during fiscal year 1999, and projected activities for fiscal year

2000, as required by 38 V.S.C. § 7101(d)(I). Part III contains the

information required by 38 V.S.C. § 7101(d)(2) and (3).

I believe this report emphasizes the firm commitment by the Board to

"One VA" in Fiscal Year 1999. Each member of the BV A Team has

worked hard at increasing the Board's cooperation with the Veterans

Benefits, the Veterans Health, and the National Cemetery Administrations

through such measures as joint use of our computer tracking system

(V ACOLS), increased dialogue between the Decision Teams and the

regional offices, and seminars with VHA and VBA leading to improved

medical examinations. The net result has been, I believe, better and more

transparent service to veterans and their families.

Coupled with our continuing high level of productivity, these

initiatives clearly demonstrate the Board's dedication to its mission of

providing high quality, timely decisions to those we are privileged to serve.

Very Respectfully,

[.J ~U

E. D. Clark

Enclosure
TABLE OF CONTENTS

PART I. THE BOARD OF VETERANS' APPEALS

mSTORICAL OVERVIEW 1

SINCE JUDICIAL REVIEW 3

mSTORICAL ORGANIZAnON OF THE BOARD 8

CURRENT ORGANIZATION OF THE BOARD 9

ORGANIZATIONAL DIAGRAM 10

ADMINISTRATNE ACnvlTlES 13

ACCESS AND OUTREACH 18

LEGISLATION 19

MEMBERS OF THE BOARD OF VETERANS' APPEALS 20

SELECnON OF BOARD MEMBERS 21

MEDICAL ISSUES 21

ATTORNEY AND AGENT FEE AGREEMENTS 23

REPRESENTATION BEFORE THE BOARD 24

LIAISON ACTIVITIES 24

QUALITY 25

PROFESSIONAL TRAINING 26

RESEARCH MATERIALS 28

PART ll. FY 1999 STATISTICAL DATA

TABLES AND GRAPHS 31

PART ill. ADDITIONAL INFORMATION PROVillED PURSUANT TO

STATUTORY REQUIREMENTS

ill. I. ll. ESTIMATES 38 38 U.S.C. U.S.C. § § 7101(c)(2) OF 7101(d)(2) 7101(d)(3) FUTURE TIMELINESS AND PRODUCTIVITY 41

iii
PART I

THE BOARD OF VETERANS' APPEALS

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

of Veterans Affairs (VA) that is responsible for entering the 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.

§ 7l0l(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 VA 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.

RISTO 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 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 and guidelines, many of which eventually

were codified as regulations.

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

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

workload was greatly increased in the aftermath of World War ll. 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, 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 (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 BVA decision, increased

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

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

the President approved an increase in the number of Board members to form 19 three2
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 by congressional legislation.

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 1999

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 1 law and to establish new procedures

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 observed by Judge Steinberg, " ...[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, 9 Vet. App. 535 (1996) (citing Stillwell

v. Brown, 6 Vet. App. 291, 303 (1994).

By the end of Fiscal

Year1999, the body of

veterans' common law

developed since judicial

review began filled

eleven bound volumes.

3
Changes in the law caused by the decisions of the Court, and the resulting need to

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

acceptable levels of response time and decision productivity. Compliance with these

changes in the law has required the Board to achieve and maintain standards of decision

quality at a level higher than that contemplated prior to the enactment of the Judicial

Review Act As a result, Board decisions have become longer and more complex than

they were prior to judicial review.

Additional factors that accompanied or followed the introduction of judicial review

have had a significant effect on the timeliness of appellate processing throughout the

claims adjudication process and the resultant decrease in Board member's productive

"final decision" work hours including:

increased remands from the Board to the regional offices in order to satisfy

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

VA benefits;

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

of important decisions;

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 conducting medical research 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;

the added responsibility of attorney fee agreement processing and review:

the need for readjudication of cases remanded by the Court to the Board; and

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

following prior Court and Board remands.

InFY 1999, there were 60,318 Notices of Disagreement (NOD) filed at the regional

offices, a 9.2 percent decrease from the 65,373 that were filed in FY 1998. Of these

Notices of Disagreement (NOD), 61.7 percent or 37,215 cases were actually appealed

to the Board in FY 1999.

4
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 of781 days at the end ofFY 1994. By the end ofFY 1998,

BVA's response time was reduced to less than 200 days for the first time in seven years.

In FY 1999, the time was further reduced to 195 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 for them to decide cases.

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

without incurring a commensurate increase in Board members' travel time, BVA sought

approval to employ emerging video technology to conduct this form of hearing. 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. The Board conducted over 1000 Videoconference hearings

in FY 1998, and completed a record 1,282 in FY 1999. Videoconferencing is discussed

in more detail on pages 14 through 16.

During FY 1999, Board

members conducted over

5600 personal hearings

held at VA field offices, at

the Board's offices in

Washington, DC, and by

video-conference. Most

appellants designate an

appeals representative to

assist them with the initial

preparation and final

presentation of their cases

before the Board.

5
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 1999,

private attorneys represented 5.1 percent of appellants whose appeals were decided by

the Board compared to 4.2 percent the previous year.

Many Court decisions have had a significant impact on the VA adjudication process.

Since 1991, Court decisions hfive 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 that or another court subsequent to the Board's original

decision on appeal, or as a result of intervening changes made in governing sta~tes or

regulations. A significant example is the decision of the United States Court of Appeals

for the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In that decision,

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. Subsequent to Hodge, the Court of Appeals for Veterans Claims

has remanded to the Board for readjudication, in accordance with the standard enunciated

in Hodge and in 38 C.F.R. § 3. 156(a), a large number of cases coming before the Court

on appeal involving this issue.

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 changes in the law, such as changes and updates made to the VA

Schedule for Rating Disabilities between the time a VA field adjudication is made and

the time it comes before the Board on appeal.

6
Readjudication of decisions remanded by the Court to the Board, ~d 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. In addition, in light of the Court's decision in Stegall v. West, 11 Vet.App. 268

(June 26, 1998), it is likely that additional remands from the Court to the Board, and

from the Board to the regional offices, will be required in those cases where either the

Board or a regional office fails to comply fully with the terms of a prior remand order

issued by the Court or by the Board, respectively. As stated by the Court in Stegall, in

regard to the Department's failure to comply with the terms of a 1995 Board remand

order in that case:

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 U .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 U.S.C. § 303.

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")[)], the Court cannot say, based on

the record before it, that the appellant here has not been harmed.

7
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 Hodge and Stegall, other Court rulings also have affected the way in

which the Board adjudicates cases, making BVA's decisions more lengthy, 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.

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 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 joint effort

by BVA and the Veterans Benefits Administration (VBA) 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, to comport

with new legislation that required Travel Board hearings to be conducted in docket order

number. These efforts are discussed in more detail on page 14.

mSTORICAL ORGANIZATION OF THE BOARD

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

title 38 of the United States Code. The Board's activities are directed by a 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 10.)

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

with approval of the President, based upon the recommendations of the Chainnan. 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,"

8
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 Attorneys skilled in veterans' law carefully consider

decided by individual Board appellants' records and prepare draft decisions for

mem b Pri t Pub L N 103 review and approval by Board members. ers. or 0 ..o. -

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 decisionmaking 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. B VA 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

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.

9
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Near the end ofFY 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 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 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 Chainnan (DVC)

at an AL2level, 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 S~rvice, 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 perfonn 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 Infonnation Office to answer general

questions about the Board's processes and procedures and to provide current appeal

status infonnation to appellants and other inquirers.

i-'
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 are guided by current

laws and regulations as well as the policies and procedures issued by the Board. A

centralized quality review process, discussed on page 25, insures consistent adherence

to Board-wide criteria in six areas deemed essential to quality decisions.

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 asssigned 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 ofBVA andVBA's senior adjudicatory staff and

rating board specialists, 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 pages 15 and 16.

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 work stations 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, undergoes a final quality review, 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 of medical advisers assists Board members by conducting medical research

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

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

12
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

page 23.

ADMINISTRATIVE ACTIVITffiS

Throughout the 1990s, the Board has introduced numerous administrative initiatives

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

and their families. Among the initiatives undertaken through FY 1999 are:

1993

1995

1996

complete revision of decision analysis and format

use of single Board member hearings as opposed to panel hearings

introduction of a "trailing" hearing docket

improvements in direct responses to customers and responses to

Congressional and other inquiries

consolidation of all Washington, DC, employees in one building

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

case contained in the "Introduction" section of Board decisions

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 videoconferencing 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 a single appeals tracking system (VACOLS) for use by BVA and

the Veterans Benefits Administration

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

Appeals."

13

continued improvements to the V ACOLS system allowed both Board and

regional office personnel to input additional data such as issue tracking,

status of Travel Board and Videoconference requests, and appellate hearings

held as well as the ability to use this data for a variety of reports.
Significant additional enhancements were made during FY 1999, to the Veterans'

Appeals Control and Locator System (VACOLS), which was developed jointly by the

Board and 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 appeal

status determinations;

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

A Reduced administrative overhead and operating costs associated with

appeals for both VBA and BVA;

Improved appeals-related workload management and planning information.

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 pennit the holding of BVA hearings, and

view or download Board decisions and other documents attached to V ACOLS records.

In FY 1999, the Board enhanced V ACOLS by extending RO capabilities (e.g., pennitting

more RO queries 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 BVA computer network.

As previously mentioned, the Board

conducted its first videoconferenced 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

VACOLS, the Veterans' Appeals Control and Locator

System, provides essential case management and tracking

information to users throughout the Department's appeals

adjudication system. VACOLS also provides up-to-date

case status information to VSO representatives and other

VA offices.

14
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 employing

videoconferencing technology to improve service delivery and communications by, among

other things:

Establishing a nationwide video teleconferencing network to

support the facilitation of appellant hearings and communication

between the Board and VBA field adjudication staff, as well as

communication between VBA field offices;

Developing joint equipment procurement and installation plans;

Maximizing system utilization through cooperative scheduling and

equipment compatibility;

Ensuring that the usage of videoconferencing systems is an integral

part of organizational long-term planning.

Through the use of interactive video technology, Board members conduct hearings

from Washington, DC, while appellants and their representatives present their cases

from 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. Videoconferencing has also proven to be a very effective way

to conserve the productive capability of Board members by reducing their travel time.

During FY 1999, BVA and VBA installed five more systems bringing to 25 the

number of sites available where seminars and Board hearings can routinely be held. A

fourth videoconference hearing room was designated at the Board and preparations were

completed to install a new system in FY 2000. During the last month ofFY 1999, BVA

and VBA signed a contract for 40 additional Polycom "state of the art" systems. BVA

conducted over 1,000 videoconference hearings during FY 1998 and 1,282 in FY 1999,

almost a six-fold increase over the 233 videoconferenced hearings held in FY 1997.

The Board expects to conduct over 1,500 videoconference hearings in FY 2000.

Videoconferencing is also 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 seminar and information

exchanges between BVA and the field on topics such as remand reasons, VA's "duty to

15

~'~o. c-,i,"
Videoconferenced hearings

save time and expense for

appellants and reduce

travel time for Board

members. The Board and

the Veterans Benefits

Administration also use

videoconferencing as an

effective way to conduct

seminar and information

exchanges.

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 videoconferencing, Board members are able to move down the hall,

literally, instead of traveling across the country to conduct hearings or seminars.

The Board's effective use ofvideoconferencing technology was acknowledged during

FY 1998, by the General Services Administration, who presented an award for outstanding achievement and implementation of cost effective use of video teleconferencing to

conduct nationwide long distance appellate hearings and seminars between Board members and regional office personnel.

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

callup" 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 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

16
past several years markedly reduced the appeals backlog and rendered the callup procedure

unnecessary. The number of cases awaiting review by the Board has been reduced from

more than 60,000 at the end ofFY 1996 to 20,000 at the end ofFY 1999.

Also in FY 1999, the Board expanded an Activity Based Costing (ABC) analysis,

which involves the development of a business model capable of identifying the precise

cost of each of BVA's work process components. This model enables BVA to conduct

actual and hypothetical trend analyses, as well as produce meaningful reports on the

cost of specific work activities. In addition to improving the Board's ability to fulfill its

own management information needs, this continuing ABC analysis will help the Board

comply with requirements of the Chief Financial Officer Act, Government Performance

and Results Act, Government Management Results Act, National Performance Review,

and the Federal Accounting Standards Advisory Board.

During FY 1999 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 defmed 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's jurisdiction.

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

of congress, government officals, 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. Additional refinements during FY 1999 allows VACOLS to

serve as the sole source of data used to calculate appeals resolution time. The Board and

VBA have established an appeals resolution time goal of 365 calendar days by the end

of FY 2004.

17
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. va.gov/appeals/index.htm

BVA decisions issued in calendar years 1994

Board decisions issued in calendar years through 1998 are available on the World

1994 through 1998 are also available in search- Wide Web. A series of questions and answers

able text format through VA's Web pages. Board

decisions for fiscal years 1996 and 1997 are available on a CD-ROM (Compact Disc -

Read Only Memory), also discussed on page 29, which is available for purchase by the

public. The Board expects to make its 1999 decisions available through the World Wide

Web early in calendar year 2000. The URLs for BVA's decisions are:

~

1994

1995

1996

1997

1998

1lRL

http://www. va. gov/vetapplvetindex. Fitm

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

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.

18
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 new legislation has added an additional decision-making function to

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

jurisdiction for BVA, rather than appeals of determinations made elsewhere within the

Department.

Departmental regulations governing the adjudication of CUE claims were published

in FY 1999. A challenge to these regulations is currently pending in the U.S. Court of

Appeals for the Federal Circuit. In FY 1999, the Board decided 101 motions under the

new law. At the end of the year, 480 motions were pending decision.

Each Deputy Vice Chairman spends many hours

reviewing, planning, and allocating the Decision Team's workload.

19

~
MEMBERS OF THE BOARD OF VETERANS' APPEALS

At the close of FY 1999, the following 61 individuals, 28 of whom are veterans,

were serving as members of the Board of Veterans' Appeals. At the close of FY 1999,

no Board member appointments were awaiting Presidential approval.

MARTIN, JEFFREY J.

MOEHLMANN, HOLLY E.

MONROE, JACQUELINE E.

MULLEN, ANDREW J.

ORMOND, JOHN E.

PEEVY, ALAN S.

PELLETIER, RENEE M.

PHILIPP, ROBERT D.

PHILLIPS, NANCY I.

POWELL, URSULA R.

REGAN, ROBERT P.

RICE, WARREN W., JR.

ROBERTS, JO S.

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.

SHUFELT, GORDON H.

SINGLETON, DEBORAH W.

SPICKLER, DAVID C.

STANDEFER, RICHARD B.

(VICE CHAIRMAN)

SULLIVAN, LAWRENCE M.

SULLIVAN, ROBERT E.

SYMANSKI, CHARLES W.

TOBIAS, CONSTANCE B.

TOBIN, LEO W., ill

WILKINS, STEPHEN L.

WILLIAMS, RICHARD F.

AGUAYO-PERELES, JOAQUIN

(DEPUTY VICE CHAIRMAN)

BLASINGAME, JACK W.

BOHAN, BARRY F.

BOSCH, RONALD R.

BRAEUER, WAYNE M.

BROWN, DEREK R.

BRYANT, ANNA M.

CALLAWAY, BE1TINA S.

CLARK, ELIGAH D.

(CHAIRMAN)

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.

HALSEY, MARK F.

HlNDIN,MARKD.

HOGEBOOM, CHARLESE.

(DEPUTY VICE CHAIRMAN)

HYMAN, BRUCE E.

JORDAN, VICKY L.

KANNEE, BRUCE N.

KELLER, STEVEN L.

(SENIOR DEPUTY VICE

CHAIRMAN)

KENNEDY, SUSAN L.

KRENZER, EILEEN M.

LYON, MICHAEL D.

20
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 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.

21
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. Mter

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 ofBVA

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. ApI>. 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 27

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

22
Because BVA cannot 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 VA regional offices to obtain

medical examinations in addition to these advisory opinions.

Advisory opinions obtained from VHA physicians have typically been provided in

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

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 100 opinions from non-VA medical experts under 38 U.S.C.

§ 7109 in FY 1999, compared with 81 opinions the previous year. In addition, the Board

requested 482 advisory opinions from medical experts from the Veterans Health

Administration (VHA) in FY 1999, compared with 264 in FY 1998.

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

B VA the authority to review fee agreements on its own motion or upon motion of a party

to the agreement.

In FY 1999, the Board received 879 fee agreements for filing and review, an increase

of 9 percent over FY 1998, and 29 percent over FY 1997. The number of fee agreements

received by the Board has more than tripled since 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 11 motions for Board

review of fee agreements, three were filed by attorneys, and one by a veteran. At the

end of the fiscal year, seven motions were pending. In FY 1999, the Board issued 15

23
decisions on such motions. The Board ruled that the attorney could not charge a fee in

13 cases, it ruled that the attorney could charge a fee in one case, and it dismissed the

motion in one other case.

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). One hundred seven such cases were referred

for such decisions in FY 1999, with 120 cases completed during the fiscal year. Of

those completed, 76 ordered payment to the attorney, and 44 held that the attorney could

not be paid.

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 of FY 1999, 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 1999, 72.3 percent of appellants were

represented by one of the accredited service organizations (72.8 percent in FY 1998),

11.6 percent by State Service Organizations (11.3 percentinFY 1998), 6.2 percent were

represented by an attorney, agent or others (5.3 percent in FY 1998), and 9.8 percent

were not represented (10.6 percent in FY 1998). (See table on page 32, Part II.)

LIAISON ACTIVITIES

During fiscal year 1999, the 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. 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 video systems for Videoconference appellate hearings. .

24
During FY 1999, the Chairman addressed or participated in more than twenty

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

organizations, and the active duty forces. National conventions included Disabled

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

the Jewish War Veterans. In addition to addressing the annual and mid-winter conferences

of the National Association of State Directors of Veterans Affairs, the Chairman addressed

the conferences of the Department of Veterans Affairs of the State of Texas, the State of

Alabama, the State of Georgia and the Commonwealth of Virginia. The Chairman also

had the opportunity to address the LV AAA Annual Leadership Forum as well as the VA

Alumni Association.

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

their representatives, and Members of Congress and their staffs. Most of these 24,808

requests during FY 1999, were handled by the Deputy Vice Chairman of each Decision

Team and their administrative personnel. The Chainnan 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 2,439

Congressional inquiries in FY 1999.

QUALITY

During FY 1999, the Board continued to improve the systematic and objective

approach to quality assessmenthat was initially begun in FY 1998. On a daily basis,

Board members and senior counsel evaluate and "score" a statistically valid sampling of

completed BVA decisions that have not yet been released from the Board, 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;

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;

25

.~
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 BVA counsel in specific areas where a

need for improvement is demonstrated.

PROFESSIONAL TRAINING

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

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

during FY 1999. 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 B VA to accomplish its mission to enter

timely, consistent, and high quality appellate decisions on behalf of the

Secretary.

The complexity of to day'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

26
performed by regional office and Veterans Health Administration personnel, B VA

attorneys participate in off-site training and seminars, including programs held at the

Veterans Benefits Administration's Training Academy in Baltimore, MD.

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 BVA'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 BVA'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 (LV A). 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 levels of productivity and

quality.

Members of the Decision Teams participated in a myriad of professional

developmental areas including:

0 Participation in the Digital Dictate trial program designed to permit voice-totext production of decisions.

0 Participation in the Deputy Secretary's "One VA Mentoring Program."

0 Participation in Continuing Legal Education (CLE) courses at the new

Department of Justice National Advocacy Center (NAC) in South Carolina.

0 Participation in the "One VA" conferences in Phoenix and Atlanta serving as

participants and facilitators.

0 Participated in an "Attorney Leadership Seminar" at George Washington

University in Washington, DC.

27
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 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, continue in FY 1999, to permit access to a vast

array of useful reference material.

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

aids are available for all BVA staff and VSO appeals representatives connected to the

BV A 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."

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

BVA decisions issued in

calendar years 1996, 1997,

and 1998 are available on

CD-ROM. The disk also

includes the Veterans

Benefits Law 1ndex.

28
availability and location of infonnation 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 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. It is also included on the CD-ROM

containing Board decisions issued in calendar years 1996, 1997, and 1998, which is

available for purchase through the Government Printing Office. 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 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 Appeals for Veterans Claims 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 Appeals for Veterans Claims; information concerning military awards and

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

abbreviations; and a B VA training guide on hearing loss disability, tinnitus, and neurology.

29
Since 1994, BVA's decisions have been made available to the public on CD-ROM.

Currently, Board decisions issued in calendar years 1996, 1997, and 1998, along with

the Veterans Benefit Law Index are available for purchase from the Government Printing

Office on CD-ROM. Additionally, as discussed on page 18, all Board decisions issued

in calendar years 1994 through 1998, are available in searchable text format through the

World-Wide Web. This public access to Board decisions represents an enormous potenti~

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

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

THE BOARD

part of

30
PART II

FY 1999 STATISTICAL DATA

During FY 1999, BVA issued 37,373 decisions. This total repr~sents a 9.6 percent

decrease from FY 1998, when 38,886 decisions were issued. The decrease is primarily

a result of (1) a higher percentage of final, non-remand decisions (61.9 percent) than

was issued the previous year (56.7 percent), and (2) a heightened emphasis on decisional

quality. Prior to June 30, 1999, the Board's decisions were tracked by category of appeal.

On July 1, 1999, BVA and VBA agreed to track cases by VA programs. The chart below

reflects a composite of both methods for FY 1999.

Category Total Allowed Remanded Denied Other

0

585

2

1

3

12

32

4

0

19

4

39

34,739

127

38

233

287

1,260

236

2

214

208

2

7,850

12

3

37

33

196

21

0

77

39

10

12,688

36

6

94

106

458

62

0

0

100

27

3,616

77

28

89

136

574

149

2

118

65

Burial Benefits

Compensation

Education

Insurance

Loan Guaranty

Medical

Pension

VR&C

Other Programs

BVA Original Jurisdiction

Multiple Program Areas

662 Totals 37,373 8,270 13,560 14,881

31
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FY Decisions Allowed Remanded Denied Other

1995 28,195 19.5% 47.5% 22.7% 10.3%

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%

FY 1996 FY 1997 FY 1998 FY1999

Decisions 33,944

Case Receiptsl

Added to Docket 38,447

Received at BVA 32,405

Cases pending2 60,120

Response Time 595

FTE 468

Decisions per FTE 72.5

Cost per Case $950

Hearings -VACO 431

Hearings -Field 2,445

Hearings -Video 48

43,347 38,886 37,373

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

$1,064

917

3,512

1,282

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 certified appeals pending in the field as well as cases pending at

the Board.

33

"

~

~

~

;= ,c~-- ~
* 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.

45,000

40,000

35,000

30,000

25,000

20,000

15,000

10,000

5,000

0

* Estimated

34
* Estimated

$1,400

$1,200

$1,000

$800

$600

$400

$200

$0

FY95 FY96 FY97 FY98 FY99 FY 00*

* Estimated

35 ~

j:i:; 
PART III

I. 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 (FfE), the

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

the preceding year. Sixty-four attorneys served as acting Board members from time to

time during FY 1999 for a total of 4.5 FTE. The Board uses a system of written

designations of acting Board members by the Chainnan to ensure adherence to the

statutory requirements regarding the use of acting Board members.

ll. 38 V.S.C. § 7101(d)(2)

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

AdIninistration, VA instituted the practice of adding appeals to B VA's docket upon receipt

of Substantive Appeals (VA Fonn 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.

37

.
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

~

FY98

5,787

4,737

4,877

4,448

4,801

5,777

5,878

5,464

6,061

5,783

5,928

~

EY22

4,480

4,055

4,298

4,450

5,254

6,837

6,191

5,850

5,063

4,554

4,888

-4..31.a

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 66,566 65,373 60,318

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 BVA pursuant 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 earlier on page 14.

38
Many new appeals are resolved in the field without ever reaching BVA, 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 actions, and the associated case folders

are physically transferred to the Board.

(A) Number of cases appealed to BVA during FY 1999:

Cases received at BVA:

Cases added to BVA Docket:

39,161

35,722

(B) Number of cases pending before BVA at the start ofFY 1999

Number of cases pending before BVA at the end ofFY 1999:

21,013*

20,012*

* 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 2000:

Cases Received at BVA New Appeals (VA Form 9) Filed

FY97

4,184

3,782

4,029

3,143

3,558

3,639

3,173

3,393

3,778

4,359

3,490

~

FY98

3,639

3,215

3,182

2,502

2,879

3,552

3,726

2,788

3,578

3,675

3,520

~

FY99

3,122

3,312

3,655

2,958

3,201

3,798

3,105

3,354

3,533

2,900

3,537

2..Q.8.6:

FY97

2,862

3,098

2,812

2,859

2,430

2,846

2,631

3,154

2,618

2,810

2,531

~

EY5l?!

3,634

2,176

2,408

2,332

2,607

3,894

2,558

2,196

2,578

2,540

2,489

2...Q22

EY22

2,885

2,853

3,018

3,048

2,876

3,200

2,632

3,721

2,883

2,843

2,921

2...8.42

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 44,110 39,851 39,161 32,916 32,034 37,215

39
(D) Average length of time a case was before the BV A between the time of the filing

of an appeal and the disposition during the preceding fiscal year:

Responsible

Part~

Average Elapsed

Time Interval Processing Time

Notice of Disagreement Receipt Field Station 76 days

to Statement of the Case Issuance

Statement of the Case Issuance

to Substantive Appeal Receipt

Appellant 63 days

Substantive Appeal Receipt to Field Station 639 days

Certification of Appeal to BVA

Receipt of Certified Appeal to

Issuance of BVADecision

BVA 140 days

Average Remand Time Factor Field Station 142 days

Number of members of the Board at the end ofFY 1999:

Number of professional, administrative, clerical,

stenographic, and other personnel employed by the

Board at the end of FY 1999:

(E) 61 members

418 employees

Number of acting members of the Board during FY 1999:

Number of cases in which such members participated:

64 acting members4,049 

cases

(F)

ill. 38 V.S.C. § 7101(d)(3)

The following projections pertaining to the current fiscal year and the next fiscal

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

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

Fiscal year 2000: Cases received at BVA: 39,000

Cases added to BVA Docket: 33,000

Cases received at BVA:

Cases added to BVA Docket:

39,000

33,000

Fiscal year 2001:

40
(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, B VA's estimated response time for FY 2000 is computed

as follows:

Estimated 33,600 Decisions in FY 2000 + 365 Days = 92.05 Decisions per Day

21,812 Appeals Pending before the BVA (end ofFY 2000) + 92.05 Decisions

per Day = 237 Days Response Time on Appeals (end of FY 2000)

(2) ResI2onse Time Projections: Based upon existing and projected levels of

resources, the estimate ofBVA response time, as given in the Board's FY 2001 budget

submission, is 237 days for FY 2000. These response time projections are contingent

upon BVA's original appeal receipts estimates for FY 2000 and FY 2001 shown in

paragraph ill(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 Appeals for Veterans Claims rpay 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.

41
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 2000, but it is not

possible to quantify their possible effects. Additional unanticipated factors could also

arise to affect decision production.

E==~'l~:f£3~:f£32~= :J

42