DEPARTMENT OF VETERANS AFFAIRS

Chairman, Board of Veterans' Appeals

Washington DC 20420

December 23, 1994

The Honorable Jesse Brown

Secretary of Veterans Affairs

Washington, DC 20420

Dear Mr. Secretary

I respectfully present for your submission to Congress the Report of the

Chairman, Board of Veterans' Appeals, for fiscal year 1994. Parts I, II, and III of this

report are intended to provide an overview of the Board and its activities during fiscal

year (FY) 1994 and the projected activities of the Board for FY 1995, as is mandated by

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

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

Fiscal year 1994, like the previous fiscal year, was one of tremendous change at

the Board as a result of legislative changes and the continued evolution of veterans'

benefits law, as interpreted by the United States Court of Veterans Appeals. I believe the

combined effects of this past year's legislative actions and the initiatives you instituted

will result in a more timely system delivering a higher quality product.

I thank you for your leadership, commitment, and invaluable assistance as the

Board continues to strive for excellence, improved timeliness, and increased customer

satisfaction in this era of unrelenting change in the veterans' claims adjudication

environment.

I hope that the enclosed report provides you, the Congress, and the veterans that

we serve with a comprehensive picture of the Board, its mission, and its activities.

Very respectfully,

Enclosure

Charles L. Cragin
TABLE OF CONTENTS

PART I. THE BOARD OF VETERANS' APPEALS

1

1

2

6

6

7

10

11

12

15

16

16

17

18

18

18

19

19

19

20

22

23

24

PART II. REMARKS OF THE CHAIRMAN AT THE THIRD JUDICIAL

CONFERENCE OF THE U. S. COURT OF VETERANS APPEALS

25

26

26

26

27

28

28

28

30

BOARD INTRODUCTION SHORT-TERM A LONG-TERM JUDICIAL Advance Limited Temporary Fewer The OF Select VETERANS' Collateral HYBRIDBOARD Certified BOARD Docketing Panel Suspension INITIATIVES Assignments on List INITIATIVES APPEALS Productivity Preparation of Hearings ADMINISTRATIVE Improvement 

PROCEDURES IMPROVEMENT ACT 31

111
THE ADMINISTRAllVE A MEDICAL JUDICIAL BOARD'S OPINIONS, BECOMING ROLE LAW IN AUSTIN THE JUDGE JUDICIAL V BROWN PAY COMPARABILITY REVIEW "".."...' ERA " .., ' ' 32

32

33

34

PART III. FY 1994 STATISTICAL DATA

TABLES AND GRAPHS 37

PART IV. ADDITIONAL INFORMATION PROVIDED PURSUANT TO

STATUTORY REQUIREMENTS

43

44

45

I. ESTIMATES 38 U.S.C. § OF 71 7101(d)(2) U. 01 FUTURE (d)(3) TIMELINESS AND PRODUCTIVITY

IV
PART I

THE BOARD OF VETERANS' APPEALS

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

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

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

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

U.S.C. § 7101(a), is "to conduct hearings and dispose of appeals properly before the

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

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

of Veterans Appeals. The Board renders final decisions on all appeals for entitlement to

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

disability ratings, total disability ratings, pensions, insurance benefits, educational

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

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

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

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

representation of veterans before the Department.

HISTORICAL OVERVIEW

1933 to 1988 (Before Judicial Review)

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

Part II, President Franklin D. Roosevelt established the Veterans Administration as the

organization responsible for administering all veterans' programs and benefits. The

previous patchwork system of appellate adjudication of claims for veterans' benefits was

eliminated and all questions of entitlement to benefits were subject to a single appeal to

the Administrator of Veterans' Affairs. On July 28, 1933, President Roosevelt created the

Board of Veterans' Appeals by Executive Order 6230, Veterans Regulation No. 2(a). The

Board was delegated the authority to render the final decision on appeal for the

Administrator and, organizationally, was directly responsible to the Administrator. The

Board was charged "to provide every possible assistance" to claimants and to take final

action that would "be fair to the veteran as well as the Government." Initially, the Board

was composed of a Chairman, Vice Chairman, and no more than 15 associate members.

In the 1930s, the Board established procedures, guidelines, and precedents, many of

which eventually were codified as regulations.

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

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

workload was greatly increased in the aftermath of World War II. For example, in 1949
the Board rendered almost 70,000 decisions. These decisions generally were simple,

short, and concise. The 1950s were characterized by the implementation of

organizational and operational programs to achieve more efficient case management.

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

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

promulgation of claims adjudication policy was terminated because it was felt that this

was inconsistent with the Board's primary function as an independent, quasi-judicial

agency within V A. Appellate policy also was significantly altered with the enactment of

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

jurisdiction to furnish an appellant a "Statement of the Case," a document containing a

detailed recitation of the evidence, applicable laws and regulations, and explanation of the

rationale underlying the denial of the claim. Also in 1963, the Board was granted

statutory authority to obtain an advisory :.opinion from one or more medical experts who

are independent of V A in cases involving complex or controversial medical issues. The

Board's Rules of Practice were extensively revised and were first published in the Co'de of

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

Practice are contained in Parts 19 and 20, respectively, of title 38 of the Code of Federal

Regulations.

The 1970s were characterized by a significant increase in the number of appeals as

part of the aftermath of the Vietnam War. In 1977, the number of new appeals exceeded

60,000. In 1982, 68,000 new appeals were filed. The average appellate processing time,

measured from the date of filing of the notice of disagreement until the date of issuance

of a final BV A decision, increased significantly. At the end of fiscal year (FY) 1982, the

average appellate processing time was 483 days, up from 443 days the preceding year.

To help with the increased workload, the President approved an increase in the number of

Board members to form 19 three-member sections in 1984. The maximum number of

authorized Board members subsequently was increased to 67 and 21 sections were

formed. This remained the authorized strength level until 1994, when the limit on the

number of Board members was removed. The number of appeals initiated remained in

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

the 60,000s in the early 1990s. Appeals carried through to completion and certified to the

Board for review decreased somewhat in the early 1990s, going from almost 44,000 in

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

J 988 to J 994 (Since Judicial Review)

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

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

most revolutionary change in the adjudication system since the inception of the Board in

1933. Decisions by the Court have had a profound impact as the Board actively seeks

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

procedures required to meet the continually evolving requirements of the law. While

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

2
productivity or timeliness in the VA adjudication system, judicial review has resulted in

more consistent and detailed decisions.

Response time and decision productivity have been degraded by the impact of changes

in the law, as interpreted by the Court. Compliance with the law necessitates achieving

and maintaining standards of decision quality at a level not contemplated prior to the

enactment of the Act. As a result, BV A decisions have become longer and more

complex. Factors affecting the timeliness of appellate processing include the evidentiary

development required by the Department's "duty to assist" claimants; compliance with the

directives of the Court in an ever-growing number of important decisions; the

procurement of a greater number of medical opinions and extensive medical research by

the Board and its staff; a large volume of requests for fonnal hearings before the Board,

as well as a significant amount of time involved in travel for hearings at VA regional

offices; the strict requirements imposed by more fonnal Rules of Practice; the added

responsibilities of attorney fee agreement processing and review; the re-adjudication of

cases remanded by the Court to the Board and those returned from V A regional offices to

the Board following completion of development requested by the Board on remand.

BV A response time increased from 139 days at the end ofFY 1991 to 240 days at the end

ofFY 1992. At the end ofFY 1993, response time was 466 days and 781 days at ~e end

of FY 1994.

Response time is defined as the number of days it would take BV A to

render decisions on all pending appeals at the processing rate of the

immediately preceding one-year timeframe

While the 61,618 notices of disagreement filed in FY 1994 were only slightly less than

the 65,676 filed in FY 1993, only 18,067 appeals were certified to the Board. This figure

is deceptively low, however, as it reflects a significant procedural change instituted

during 1994 whereby a claims folder is not transferred from a V A regional office to the

.

Board until shortly before the Board begins its active review of the associated case. This

procedure, known as "advance docketing," is discussed further on pages 7 and 26-27.

3
Additionally, the V JRA made a hearing before "a traveling section of the Board" a

matter of statutory right. This led to an increased demand for such hearings. Six times as

many field hearings were conducted during FY 1993 than were conducted in FY 1983. In

FY 1994, the increase in BV A response time 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. In many cases, information provided during personal hearings was

outdated, stale, or of other limited usefulness by the time the Board began its review. To

reduce this lag time, the Board temporarily suspended the scheduling of all personal

hearings at the Board's Washington, DC, offices and at V A regional offices from May 1,

1994, through the end of the fiscal year. In the future, hearings will be scheduled to be

held at a time proximate to when the Board begins its active review of a case.

The VJRA removed an historic $10 limitation on the fees which attorneys-at-law and

claims agents who represent V A claimants may charge. The Act gave the Board original

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

show significant interest in the practice of veterans' law. .

Court decisions having a significant impact on the V A adjudication process are

abundant. For example, in Schafrath v. Derwinski, I Vet.App. 589 (1991), the Court

directed that the Board consider every potentially applicable regulation in its decision,

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

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

Court imposed significant new procedural steps before a final decision by the Board may

be issued.

The Court held in Tobler v.

Derwinski, 2 Vet.App. 8 (1991), that its

decisions are binding on V A as of the

date they are issued. With the repeal in

August 1991 of the provision of 38

U.S.C. § 7267, which provided that the

Court's decisions would become final 30

days after their issuance, and with the

Court's decision in Tobler, the Board is

provided no time to effectuate the Court's

decisions. This often requires the Board

to stop the flow of cases, identify those

cases that are affected by the Court's

decision, and re-adjudicate them.

Another area in which the Court's

opinions have expanded both the

complexity of decision-making and the

workload of the Board is in the

reconsideration of prior BV A decisions.

The body of veterans' common law accessioned

its sixth volume during FY 1994.

4
In Boyer v. Derwinski, I Vet.App. 531 (1991), the Court held that, on reconsideration, the

Board must entirely re-adjudicate the case on a de novo basis, as if the prior decision had

never been entered.

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

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

decisions are returned to the Board for re-adjudication. Furthermore, because of Court

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

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

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

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

require re-adjudication by the Board and result in a vastly increased workload.

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

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

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

historically non-adversarial nature of Board proceedings. The result of the Court's

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

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

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

record. In Austin v. Brown, 6 Vet.App. 547 (1994), the Court raised serious questions

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

adviser opinions from physicians employed by the Board. At the present time, the Board

is considering a regulatory change that will expressly authorize the Board to obtain

opinions on the record from Department medical personnel. Cases like Jones v.

Derwinski, 1 Vet.App. 210 (1991), have required a candid assessment of the credibility of

lay testimony not in keeping with the non-adversarial approach that has historically

characterized VA proceedings. Decisions like McGinnis v. Brown, 4 Vet.App. 239

(1993), and many others require that the Board also be more technical and "legalistic" in

its approach to decision writing.

In the early years of its existence, the Court expanded the reach of its juris~iction in

decisions like Smith v. Principi, 3 Vet.App. 378 (1992), holding that the Board is required

under 38 C.F.R. § 3.105(a) to adjudicate contentions that it has committed "clear and

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

Patterson v. Brown, 5 Vet.App. 362 (1993), holding that the Court had jurisdiction to

review the Chairman's dcnials of motions fQf reconsideration. However, the U.S. Court

of Appeals for the Federal Circuit reversed the Court, holding, in Smith v. Brown, 35 F .3d

1516 (Fed. Cir. 1994), that the clear and unmistakable error review authority in 38 C.F .R.

§ 3.1 05( a) relates only to review of agency of original jurisdiction decisions and not those

of the Board. The u.s. Court of Appeals for the Federal Circuit again reversed the Court,

holding, in Mayer v. Brown, 37 F.3d 618 (Fed. Cir. 1994), that the Court had no

jurisdiction to review decisions of the Chairman. .

5
In the legislative arena, two pieces of FY 1994 legislation have had and will continue

to have a significant effect on the Board and the quality and timeliness of its decisionmaking. Signed into law by the President as Pub. L. No. 103-271 on July I, .1994, the

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

fundamentally changes the way the Board operates by providing for decisions by

individual Board members, rather than by panels of three members. This Act also

consolidated BV A hearing procedures and permitted, for the first time, advancement on

the hearing docket for BV A hearings at regional offices. Undoubtedly, this is one of the

most significant pieces of legislation affecting the Board in the Board's 61-year history.

Pub. L. No. 103-446, the "Veterans' Benefits Improvements Act of 1994,'" enacted after

the close of FY 1994, provides career incentives and stability for the Board's most

experienced members, thereby correcting a significant problem with attrition to the

administrative law judge program. In addition, this Act, for the first time, permitted the

Board to screen cases out of docket or4er in order to insure that the record is ready for

final consideration on the merits. Both of these measures are discussed in greater detail,

beginning on page 10 of this report. .

1994: A YEAR OF CHANGE AND REINVENTION

Administrative Initiatives

Over the past several years, the Board has introduced numerous administrative

initiatives to meet the challenges resulting from judicial review and to improve the

service it provides to veterans and their families. These initiatives have included the

complete revision of decision analysis and fonnat (1991); the use of single Board

member hearings as opposed to panel hearings (1992); the introduction of a "trailing"

hearing docket (1993); improvements in direct responses to customers and responses to

Congressional and other inquiries (1993); and the consolidation of all BV A employees in

the Washington, DC, area in one building (1993).

In 1994, a number of initiatives were implemented:

The preparation of certified lists of relevant evidence --for a time prepared for

every Board decision --is now limited to those cases for which a Notice of

Appeal has been filed with the Court. Anecdotal information indicated that

counsel spent an additional 4 to 6 hours on each case to identify and list every

item of relevant evidence. Board members also expended additional time in

reviewing, considering, and acting on each item listed.

0

Internal administrative procedures have been revised to expedite the processing of

paperwork.

0

The length of the "Introduction" section of Board decisions has been reduced to

minimize the time-consuming restatement of the history of each case.

0

6
0 The Board implemented "advance docketing" procedures, permitting the

placement of cases on the Board's docket as soon as a "substantive appeal" (V A

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

procedure assures that all appellants are treated fairly in docket order assigrunent.

It also greatly reduces the need to transfer records between the Board and VA

regional offices, thereby reducing the time expended on responding to case status

inquiries and on the case transfer and tracking processes. In addition, "advance

docketing" permits V A to comply with the Court's decision in Ebert v. Brown, 4

Vet.App. 434 (1993), by providing regional offices with access to veterans'

records to act on new claims while appeals of earlier decisions remain in appellate

status.

Ongoing measures include the prompt dissemination of the Court's decisions within

the Board and the provision of guidance in response to individual Court decisions; an

increase in the attorney staff that prepares draft decisions; the institution of a formal,

comprehensive training program for staff counsel; the introduction of computer

equipment to facilitate the production of decisions and the tracking of cases and other

data; and the inclusion of staff physicians in quality review activities.

The Board is currently working on the following additional administrative measures:

Revising hearing scheduling procedures so that case hearings are conducted

nearer to the time when cases are reached on the Board's docket.

Examining BV A's current staffing to eliminate or combine positions not directly

associated with the generation of decisions, thereby permitting the appointments

of additional Board members and the hiring of additional counsel without

exceeding existing limits on the number of BV A employees authorized.

Attempting to expand programs to reward exceptional perfonnance and special

contributions by BV A employees, thereby providing incentives for more ~fficient

decision production.

Realignment of the Board's operational processes to more effectively operate in a

single Board member decision environment.

Select Panel on Productivity Improvement

In February 1994, the Chairman advised the Secretary that, while the administrative

initiatives implemented by BV A, in the aggregate, would help to improve productivity

and response time, they would not restore these traditional measures of organizational

effectiveness to historic levels. Long-term measures that would address the underl~ing

causes of the backlog, to the extent possible within this new legal environment, were

needed.

7
Accordingly, the Chainnan suggested that the Secretary establish a Select Panel

charged with exploring new approaches to enable the Board to redefine the way it

operates and to develop and consider any changes that would enable the Board to meet

more effectively the challenges posed by the current adjudication and appellate

environment. Given the experience of the Blue Ribbon Panel, which was convened last

year to deal with a similar set of circumstances in the Veterans Benefits Administration,

the Board hoped that such intensive, concentrated effort would provide significant

insight.

In response, in March 1994, the Secretary chartered the Select Panel on Productivity

Improvement at the Board of Veterans' Appeals. The Panel, chaired by Mr. Guy

McMichael, Chairman of the Board of Contract Appeals, included the Under Secretary

for Benefits and representatives from the leading veterans' service organizations, the

Social Security Administration, the General Counsel's office, and the Board. It was

charged with "conduct[ing] a systematic review of the Board of Veterans' Appeals and its

relationship with other Departmental elements, and mak[ing] recommendations regarding

the mission, structure and operations of the Board that will result in more timely

processing of claimants' appeals."

The Panel explored a variety of approaches and presented 12 specific

recommendations to the Secretary in June 1994. The recommendations, all of which

were subsequently approved by the Secretary, reflected a consensus, if not unanimity, of

the group. At least in part, the recommendations involved not only the Board, but other

elements of the Department. The Board is now in the process of implementing each of

these recommendations.

First, the Panel recommended that the Department revise its timeliness measurement

system to address the claimants' real concern --the total time from the filing of a claim to

the receipt of a final V A decision. The Board has begun to implement this new

timeliness measure, in addition to others that address budgetary and future planning

needs.

The Panel also advised that the Veterans Benefits Administration (VBA) continue its

aggressive efforts to implement the recommendations of the Blue Ribbon Panel that, in

1993, examined the problems causing delay in the adjudication process at the Regional

Office (RO) level. The Panel stressed that VBA should continue to give a high priority to

its efforts to improve the development of evidence at the RO, which would ultimately

reduce the number of cases remanded to the RO by the Board for needed development.

In addition, the Panel counseled that expedited treatment be afforded to cases that have

been remanded to the RO by the Board. The Under Secretary for Benefits directed that

this latter measure be implemented immediately.

The Panel recommended that the Board be granted the authority to perform an initial

review or "prescreening" of appeals in advance of the time when that case would

ordinarily be considered and decided in docket order. This prescreening procedure

8
enables the Board to identify deficiencies in the record and initiate corrective action while

the case awaits final consideration on the merits based on its place on the docket.

Language amending 38 U.S.C. § 7107 to authorize such prescreening procedures was

included in legislation that was enacted by Congress and was being considered by the

President at the close of the fiscal year. On November 2, 1994, the President signed the

"Veterans' Benefits Improvements Act of 1994" into law as Pub. L. No. 103-446. (A

discussion of this legislation is included in this report, as its development and passage by

Congress was one of the most significant events affecting the Board in FY 1994.)

The Panel also recommended providing better and more comprehensive training and

performance measurements for BV A staff counsel; modifying the V A Form 9

(substantive appeal) to encourage appellant consultation with a service representative;

seeking legislation to increase hearing options by authorizing the conduct of BV A

hearings, at the claimant's option, by a RO official acting as an agent for the Board;

exploring the possibility of expanding the geographic locations at which hearings may be

held by the use of teleconferencing technologies; improving the training and methbds of

evaluating performance of staff counsel; increasing the use of advanced technological

systems, such as document imaging and the use of CD-ROM and other on-line computer

technologies; and resolving attrition problems at the Board resulting from the loss of pay

equity between Administrative Law Judges (ALl) and Board members, and those

resulting from the imposition of fixed terms of employment on Board member positions.

Perhaps the most interesting

recommendations of the Panel focused on

redefining the Board's role in the VA

benefits adjudication system. The Panel

concluded that the Department should

increase individual accountability in the

appellate adjudication process to improve

timeliness and ensure the highest quality

consideration of a claim's merit. It

recommended that the Secretary promulgate

regulations granting the Board complete

authority to develop, consider, and dispose

of a case once a substantive appeal (VA

Fonn 9) is filed. This represents a

significant change from thc current

procedure for dealing with cases in which

the record is insufficient for appellate

adjudication on the merits. The Board

generally remands such cases to the agency

of original jurisdiction, which is charged

with developing the record and then readjudicating the claim.

Select Panel on Productivity

Improvement for the BVA

'Purpose: To conduct a systemic review of the

Board of Veterans' Appeals and its relationship with

other Departrnental elements and make

recormnendations rega,ding tt." ",...ion, ,"uc"""

and operations of the Board th,,! will result in more

t;mely processing of claimant, appeals:'

Jesse Brown

Secretary March 25. 1994

The Secretary's Selcct Panel on Produftivity

Improvement presented 12 specific

recommendations.

9
The Panel suggested that the new procedure permitting the Board to obtain evidence

directly or otherwise develop the claim without remanding the case to the RO for

development and re-adjudication should be perfected in a trial or pilot program.

Claimants would be allowed to "opt out" of the revised system and continue to have their

appeals processed in the current manner.

Legislative Initiatives

FY 1994 was a year of enormous legislative accomplishment for the Board. The

President signed into law two measures that are fundamentally changing the way the

Board does business and will ensure that the Board is able to retain the best and brightest

of its members.

On July 1, 1994, the President approved S. 1904, the "Board of Veterans' Appeals

Administrative Procedures Improvement Act of 1994," as Pub. L. No. 103-271. This

measure, which resulted in part from the personal involvement of the Secretary arid the

Chairman in coordination with veterans' service organizations, ended the 60-year

requirement that decisions be issued by a panel of three members, authorizing instead

decisions issued by single Board members. This change was estimated to result in a 25

percent increase in productivity at the Board and significantly reduce response time. The

law also (1) eliminated the statutory limit on the number of Board members (previously

67, including the Chairman' and Vice Chairman); (2) authorizes the use of various

electronic media to conduct hearings; (3) bars the original decision-making member(s)

from reconsideration decisions; (4) provides an exception to docket-order hearings in

cases of severe financial hardship or illness; and (5) requires the Chairman to conform to

the Code of Judicial Ethics of the U.S. Court of Veterans Appeals as that code relates to

partisan political activities.

Another significant legislative accomplishment is Pub. L. No. 103-446, the "Veterans'

Benefits Improvements Act of 1994," which was actively supported by the Board and the

Department and contains a number of measures affecting the Board. It incorporates

several of the recommendations of the Select Panel on Productivity Improvement

discussed earlier.

Title II of Pub. L. No.1 03-446 restored the practice of pay equity between Board

members and federal ALJs, ended terms for Board members, and instituted performance

standards for members. Until 1990, bothALJs and Board members were paid at the same

level. Beginning in 1991, AU pay was increased by about 20 percent. In addition, since

passage of the Veterans' Judicial Review Act in 1988, Board members have been subject

to terms of nine years, while AUs were not. The net result was a loss of the most

experienced Board members to the AU ranks --more than 15 percent during the period

from July 1993 through July 1994. Title II sets Board member pay at the same level as

ALJs and eliminates terms. At the same time, the bill requires "recertification" of Board

members at least once every three years under performance standards developed by the

Chairman with the approval of the Secretary. Title II also permits the Chairman to

10
continue to serve ~fter the expiration of his appointment --with the approval of the

Secretary and within certain time limitations --until a successor is appointed.

Pub. L. No. 103-446, title III, in pertinent part, pennits the Board to "screen" appeals

to detennine the adequacy of the record for decision-making purposes or to remand the

case immediately for additional development. Provisions of title III also require the

Secretary to provide expeditious treatment by the Board of any case remanded by the

Court of Veterans Appeals.

Finally, title IV of the new law established the "Veterans' Claims Adjudication

Commission," designed to examine and make recommendations concerning the entire

claims-processing system, including the Board. The Commission will be composed of

nine members, only one of whom will be a V A employee. The Commission is required

to issue a preliminary report in November 1995, with a final report due in May 1996.

Claims File Security

One of the most unfortunate situations in recent Board history was disclosed in FY

1994. Board members detected unusual patterns of decision recommendations prepared

by two staff attorneys. In each of these apparently unrelated cases, the attorneys in

question recommended that an unusually high percentage of appeals be remanded to V A

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

that the two attorneys were altering documents in or removing records from appellants'

files, thus necessitating the return of the appellants' claims folders to V A regional offices

for further development.

Investigations undertaken by the V A Office of Inspector General, at BV A's request,

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

some claims files assigned to them for review. One of the attorneys resigned in January

1994 and is still under investigation by the U.S. Attorney's Office for the District of

Columbia. The second attorney pleaded guilty to a felony charge of unlawful

concealment, removal, and mutilation of government records and, at the end of tJte fiscal

year, was awaiting sentencing in federal court.

After discovering the tampering, the Board initiated a systematic review of the

approximately 1,800 decisions handled by the two attorneys since 1990, to identify those

in which tampering may have occurred. During the course of FY 1995, the Board will

notify all appellants whose cases were handled by the two attorneys and inform them of

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

tampering or not, appellants and their representatives will be afforded the opportunity to

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

about missing or altered documents or take other appropriate action.

.

Corrective actions available to appellants include the submission of additional or

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

11
on an incomplete or altered record, filing a motion for reconsideration. Cases involving

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

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

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

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

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

tampering resulted in further delay in an already too lengthy appeal process. The shortterm effect on the Board has been substantial in terms of time and costs expended to

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

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

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

Board's computerized case tracking system, along with the possible future

implementation of document imaging technology, will reduce or eliminate the likelihood

of any recurrence of this problem.

Because of the expertise of Board members, it was the Board that discovered the

tampering; it was the Board that caught it; and it was the Board that stopped it.

ORGANIZATION OF THE BOARD

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

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

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

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

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

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

of Board members. The

Board is also authorized

by § 7101(a) to have

"sufficient" professional,

administrative, clerical,

and stenographic

personnel as are

necessary to accomplish

its mission. (BV A's

organization chart is

shown on page 14.)

All members of the

Board, except the

Ch~irman, are appoihted

by the Secretary, with

Pub. L. No.1 03-271 authorized single Board member decisions. approval of the President,

12
based upon the recommendations of the Chainnan. The fixed tenns of office for Board

members that existed since the enactment of VJRA in 1988 were eliminated by

legislation approved by Congress in FY 1994. This legislation, Pub. L. No. 103-446, also

increased Board member pay to a level comparable to that of Administrative Law Judges.

Prior to the enactment of this law, Board members were the only federal employees at the

GM or GS-15 level that required Presidential approval for appointment. The Chainnan

holds an Executive level position, and the Vice Chainnan and Deputy Vice Chainnan are

members of the Senior Executive Service.

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

Service consists of Board members, staff counsel who support the Board members, staff

medical advisers, and the Chairman's staff. 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. This is a change from past procedures wherein, as

required by law, three member panels reviewed and decided each appeal. Currently, the

Board is divided into 21 decision-making units (Board sections), each composed 'of at

least two attorney Board members, one of whom is designated Chief and bears the

supervisory responsibility for the section.

A professional staff of eight or nine attorneys, referred to as staff counsel, are assigned

to each Board section. Staff counsel are graded from GS-9 through GS-14. The Chief

member of a section reviews the section's caseload and assigns individual appeals to staff

counsel for the preparation of written tentative decisions. These draft decisions are

typically prepared by counsel on individual computer work stations. The counsel return

completed tentative decisions to Board members for review. The Board member

typically will review the record and revise the submission or return it to counsel for

revision. When a decision that is acceptable to the Board member is finalized and signed

by the member, the decision is processed through the Board's Quality Review section and

then forwarded to the Administrative Service for dispatch.

A staff of medical advisers assist Board members by conducting medical research and

training staff counsel on medical issues. In addition, medical evaluations of a ~ase may

be obtained from the V A Under Secretary for Health, the Anned Forces Institute of

Pathology, or an independent medical expert who is usually a member of the faculty of a

leading medical school.

The Board's Administrative Service supports the system by facilitating the efficient

processing of appeals. This support includes case management and tracking, docket

control, scheduling of hearings, secretarial and transcription services, as well as liaison

activities with veterans, veterans' service organizations, Members of Congress and their

staffs, and other interested parties. The Board's transcription unit, located in WilkesBarre, Pennsylvania, electronically transmits draft decisions, hearing transcripts, and

other documents to the Board's offices in Washington, DC. .

13
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MEMBERS OF THE BOARD OF VETERANS' APPEALS

The Honorable Jesse Brown administers the oath of office to new Board members.

At the close of FY 1994, the following 57 individuals, 34 of whom are veterans, were

serving as members of the Board of Veterans' Appeals. No Board member appointments

are awaiting Presidential approval. There are no physicians serving as Board members.

AGUA YO-PERELES, JOAQUIN

ANDREWS, KENNETH R., JR.

ANTHONY, JAMES R.

BAUER, ROGER K. (VICE CHAIRMAN)

BLASINGAME, JACK W.

BRAEUER, WAYNE M.

BROWN, DEREK R.

CALLOW A Y, BETTINA S.

CHEEK, MICHAEL D.

CLARK, HALSTEAD H.

COPELAND, BARBARA B.

CRAGIN, CHARLES L. (CHAIRMAN)

DANNAHER, THOMAS J.

DAY, JONATHAN E.

DONSBACH,JAN

DURKIN, SHANE A.

FLOWERS, FRANK J.

FRANK, RICHARD B.

GICK, GARY L.

GOUGH, JEROME F.

HOGEBOOM, CHARLES E.

HYMAN, BRUCE E.

JOHNSON, JAMES U.

JORDAN, VICKY L.

KANNEE, BRUCE N.

KRENZER, EILEEN M.

LYON, MICHAEL D.

MARTIN, JEFFREY J.

MOEHLMANN,HOLLY

MONROE, JACQUELINE E.

O'NEILL, EUGENE A.

ORMOND, JOHN E. (ACTING)

PELLETIER, RENEE M.

PHILIPP, ROBERT D.

PHILLIPS, NANCY I.

POWELL, URSULA R.

REDDY, WILLIAM J.

RICE, WARREN W., JR.

ROBIN, NANCY R.

RUSSELL, CRAIG P.

SABULSKY, MARY M.

SCHULE, JOHN J.

SCHWARTZ, HOWARD N.

SEERY, EDWARD W.

SENYK, GEORGE R.

SHARP, JANE E. -

SHERMAN, IRIS S.

SHUFELT, GORDON H.

SPICKLER, DAVID C.

STANDEFER, RICHARD B. (DEPUTY

VICE CHAIRMAN)

SULLIV AN, LAWRENCE M.

SULLIV AN, ROBERT E.

SYMANSKI, CHARLES W.

TOBIN, LEO W., III

TUTERA, ALBERT D.

WARNER, SAMUEL W.

WILKINS, STEPHEN L. .

15
SELECTION OF BOARD MEMBERS

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

first time in many years, no physicians serve as members of the Board. Board members

are selected through a highly competitive process. Each must be completely familiar with

the growing body of applicable statutory, regulatory, and judicial authority and must

acquire a solid background in the medical and other areas of subject matter expertise

necessary to adjudicate the wide variety of claims within the Board's jurisdiction. With

very few exceptions, Board members have been drawn from the ranks of staff counsel to

the Board, because the particular expertise necessary to adjudicate appeals for veterans'

benefits in an expeditious manner is most commonly found in this group. Staff counsel

generally require from 7 to 10 years of experience before they are considered qualified for

consideration as a Board member. The selection process for the limited number of Board

member openings is extremely competitive; only the best are selected. The Board also

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

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

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

the candidates is never a factor for consideration.

THE ROLE OF THE BV A PHYSICIAN

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

expertise, including that of a physician serving as a Board member, but must rely upon

"independent" medical evidence on the record in support of the determination reached.

This requires that Board members provide a thorough explanation of all medical

principles relied on, with discussion of and citation to independent authority, such as

medical treatises, texts, journals, and epidemiological studies. In addition, the Board

increasingly has been required to obtain additional medical information and/or expert

opinion on the record from sources within and outside the Department.

Furthennore, Court decisions in the cases of Gilbert v. Derwinski, CQlvin v.

Derwinski, and Hatlestad v. Derwinski have altered the manner in which BV A physicians

are employed in the decision-making process. In the course of his confinnation hearing

in February 1991, the Chainnan stated that he questioned whether the particular expertise

of BV A physicians would be more effectively utilized in the role of an evaluator and

analyst, rather than as an adjudicator. He further indicated that he would examine the

issue in depth if he were confinned and appointed Chainnan. Shortly thereafter, 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.

The Court has held that the traditional use of physicians as adjudicators, deciding

cases on their own medical expertise, is inappropriate. As a result, BV A utilizes its

physician staff in other capacities, such as providing advice, research, training, and

internal quality review. To provide the maximum flexibility, and in anticipation of

16
Colvin and its progeny, 3-year tern1S of office were recommended for each of the

physician Board members appointed in the initial round of appointments in FY 1991.

Their tern1s expired in July 1994.

After Colvin, BV A physicians were increasingly utilized in the capacity of medical

advisers. They provided expert medical opinions "on the record" in appeals in which

such guidance was required. However, the Court in Austin v. Brown raised serious

questions concerning the fairness and impartiality of the Board's procedures for utilizing

Board medical adviser opinions. Since announcement IJf Austin, the Board has not

utilized opinions from its medical advisers in adjudicating appeals. At the present time,

the Department is considering a regulatory change which will expressly authorize the

Board, under certain circumstances, to obtain opinions on the record from Department

medical personnel.

Colvin, Austin, and other Court decisions have resulted in a significant increase in time

spent by BV A professional staff in performing legal and medical research. The absence

of medical members within Board sections has increased the responsibility of the attorney

Board members by requiring them to analyze the medical evidence with increased

frequency and sophistication. In addition, the attorney staff must independently

recognize when additional development of the record is warranted, particularly the need

for expert medical opinion. To help meet this need, the resources of the Board's Research

Center have been greatly expanded. In addition, the role of the BV A staff physician in

the quality review process has also been expanded.

The Board continues to seek advisory medical opinions from V A sources, including

the Under Secretary for Health, from the Armed Forces Institute of Pathology, and from

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

schools. In FY 1994, the Board requested 159 opinions from independent medical

experts under 38 U.S.C. § 7109.

The Board and the Veterans Health Administration (VHA) have entered into an

agreement whereby BV A may obtain advisory medical opinion services on a

reimbursable basis from VHA. While BV A has requested approximately 20 opinions

from VHA annually over the past two years, we anticipate that as many as 2,000 opinions

could be requested under the contemplated arrangements.

REVIEW OF ATTORNEYS' AND AGENTS' FEE AGREEMENTS

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

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

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

to the agreement. .

17
In FY 1994, the Board received approximately 280 fee agreements for filing. Most of

the perceived problems concerning fee agreements were handled by correspondence. The

Board issued eleven motions for review of fee agreements for insufficiency in FY 1994.

At the end of the fiscal year, five motions were pending. Three motions had been

withdrawn upon payment to the client of the disputed fee. In three instances, the Board

issued a decision that the attorney could not charge a fee because there had not been a

final decision of the Board concerning the matter for which the attorney was attempting

to charge a fee.

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

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

payment directly by V A under 38 U.S.C. § 5904(d). In FY 1994, 56 cases were referred

for such decisions. Fifty-five such cases were completed during the fiscal year: 21

ordered payment 'to the attorney, 25 held that the attorney could not be paid, 1 was

returned to the regional office, and 8 were withdrawn by the parties.

REPRESENT A TION BEFORE THE BOARD

In FY 1994, 87.0 percent of appellants were represented by one of the accredited

service organizations, 4.0 percent were represented by an attorney or agent, and 9.0

percent were not represented. In FY 1993, 87.1 percent were represented by an

accredited service organization, 3.1 percent were represented by an attorney or agent, and

9.8 percent were not represented. (See table on page 38, Part III.)

LIAISON ACTIVITIES

Correspondence and Congressional Liaison Activities

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

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

are handled by the Board's Administrative Service and the Office of the Chainnan. The

Chainnan provided 5,855 written responses to Congressional inquiries in FY 1994. In

addition, the Chainnan responded to correspondence from claimants and other interested

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

The continuing increase in decision processing time has resulted in a corresponding

increase in the number of telephone calls and letters from Members of Congress,

appellants, and others. Because of the increasing complexity of the law, as interpreted by

the Court, responses to such inquiries have become far more complex and time

consuming. In some instances, cases must be withdrawn from active appellate

consideration while a response to the inquiry is being prepared. The rapidly ~volving

body of veterans' law requires continual retraining of Administrative Service employees

who respond to these inquiries.

18
Liaison with Veterans'Service Organizations

Veterans' service organizations (VSOs) provide representation for 87 percent of those

filing appeals with the Board. VSOs are critical to the Board's operations.

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

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

training conferences. In early February, for example, he held individual meetings with

senior officials of The American Legion, the Disabled American Veterans, the Veterans

of Foreign Wars of the United States, and the Paralyzed Veterans of America to discuss

the steadily increasing appeal processing time and the Board's efforts to improve

productivity and timeliness through the series of administrative and legislative actions

previously described in this report. In addition, the Chairman addressed or participated in

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

Other Liaison Activities

Throughout the year, the Chairman made presentations to the staffs of the Committees

on Veterans' Affairs of the Senate and House of Representatives; the Subcommittee on

V A, HUD, and Independent Agencies of the Senate Committee on Appropriations; and

individual members of Congress concerning the backlog of appeals and the Board's

initiatives to increase productivity and improve decision timeliness. Similar

presentations were made to representatives of many veterans' service organizations. One

of the key elements of these presentations was the proposal to amend title 38 of the

United States Code to permit single Board member decisions. As previously noted, this

proposal was incorporated in Pub. L. No. 103-271, signed by the President on July 1,

1994.

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

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

In November 1993, he testified in favor of the single Board member decision-making

legislation. In February 1994, he discussed the impact of judicial review on th~ Board's

budgetary requirements, the administrative initiatives being undertaken by the Board, and

the legislation supported. In April 1994, he testified for the Department in favor of

provisions which would restore the practice of pay equity between Board members and

Federal administrative law judges (ALJs). As noted above, this proposal was

incorporated in Pub. L. No.1 03-446, signed by the President on November 2, 1994.

PROFESSIONAL TRAINING

Included in the recommendations of the Select Panel on Productivity Improvement for

the Board of Veterans' Appeals was a recommendation to improve the training and

professional development of staff counsel and Board members. In response, the Board

established a committee, headed by the Vice Chairman, to develop and implement a

19
comprehensive training program for all counsel and Board members. This coordinated

program will provide intensive instruction in a variety of functional areas, including

claims adjudication, veterans' law education, medical issues, and computer wordprocessing. Instruction will be provided by subject matter experts from within the

Board's ranks and from outside sources. A key feature of the program will be attendance

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

by all attorneys beginning their careers at the Board. As they have in the past, BV A staff

physicians will continue to conduct lectures on a variety of medical topics.

AUTOMATION INITIATIVES

The Board's on-going automation activities are intended to increase the efficiency of

its operations and thereby offset, to the extent practicable, the adverse effects of judicial

review on BV A productivity and timeliness. In FY 1994, the Board completed office

automation training and the installation of personal computers for all professional and

administrative staff. Prior to this automation project, there was only one Wang terminal

in each of the 21 Board sections. Now all Board counsel have word processing and

electronic reference material available to assist them in producing high quality decisions

in a more efficient manner.

This year saw the BV A computer network grow to over 400 users in Washington, DC,

and the entire staff of 40 employees in the Wilkes-Barre, Pennsylvania, transcription unit.

In addition to hearing transcripts and rating decisions, the Wilkes-Barre office also

transcribes tapes for nine regional offices and electronically transmits the completed work

directly to the regional offices.

In March 1994, all Board decisions issued in calendar years 1992 and 1993 were

compiled on a single CD-ROM (Compact Disc -Read Only Memory). The entire text of

all decisions issued in those years, along with an index to those decisions, was included

on the CD-ROM. This product allows researchers to search all 1992 and 1993 decisions,

separately or simultaneously, for specific topics and to display or print the text of

decisions matching the search criteria. This capability represents an enormous potential

reduction of research time for attorneys preparing decision recommendations, appeal

representatives, and others.

The Board also designed and made available another important computer research tool,

the Veterans' Benefits Law Index. This index was created to facilitate legal research and

assist with the preparation of Board decisions. The index includes references to

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

Appeals for the Federal Circuit, U.S. Supreme Court, and V A Office of the General

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

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

by the Veterans Benefits Administration's Compensation and Pension Service to

adjudicators in all 58 V A regional offices. This asset allows Board counsel, members,

20
and others to keep abreast of the

rapidly expanding and changing

body of veterans' benefit law.

~

During FY 1994, several research

tools were installed on the BV A

computer network to assist staff

counsel and Board members in

conducting their increasingly

complex research. These tools

include an electronic version of title

38 of the Code of Federal

Regulations and an index of changes

to these regulations, which

essentially lists sections affected by

proposed and final rules printed in

the Federal Register. In addition, an

index of precedent opinions of the

office of the VA General Counsel TL .I Tie text 0 if a II ca Ienuar -' year 1992 and 1993

has been Installed. Computer access -' 0 0 Of, hf, . I CD ROII .ueClSlons are aval a e on a Sing e -lYI.

has also been made available, on a

limited basis at the present time, to WESTLA W, which affords access to the complete

texts of opinions of the U.S. Court of Veterans Appeals, the U.S. Courts of Appeal, and

the U.S. Supreme Court. The Board plans to make WESTLA W available to all staff

counsel and Board members in FY 1995.

Another important development has been a broadened exchange of information

between the Board, the Veterans Benefit Administration (VBA), and other V A operating

elements. Of particular note is the Board's computer access to VBA's policy and

procedures directives, critical tools used throughout the V A claims adjudication system.

The Board, along with VB A, the Veterans Health Administration, and the National

Cemetery System, is also participating in the Master Veterans' Record Project. This pilot

program allows computer searches of V A facility data bases to determine certain

information, such as periods of hospitalization or treatment, critical to adjudicating

claims.

Direct access to the Board's computerized case tracking system was made available to

VSOs and V A Congressional liaison staffs via telecommunications links in a continuing

effort to provide information access to those who need it. The successor system to the

case tracking system is projected to become fully operational during the second quarter of

FY 1995. Also in FY 1995, the Board anticipates posting information, such as that

contained on the decision CD-ROM, on computer facilities accessible via Internet.

.

Preparation of tentative BV A decisions and recurring administrative documents has

been facilitated by the expanded use of customized word processing templates.

21
Administrative efficiency and timeliness have been improved through the use of these

templates by allowing users to concentrate on document substance rather than form.

Basic word processing training, begun in FY 1993 for the Board's administrative,

professional, and transcription services personnel (located in Wilkes-Barre,

Pennsylvania), was completed during FY 1994. In addition to basic word processing

classes, instruction on BV A-specific document preparation procedures was conducted.

Training of hearing-impaired employees was facilitated by two non-VA interpreters hired

by the Board to translate lessons through the use of sign language.

The Board also initiated a word processing and CD-ROM (Compact Disc -Read Only

Memory) data search training program for VSO appeals representatives. In May 1994,

twelve Disabled American Veterans (DA V) service officers and secretaries took part in

the inaugural class, which was tailored to meet the specific computer literacy

requirements identified by DA V. Instruction included basic word processing techniques

as well as procedures for the use of a BV A-designed template that facilitates Drief

preparation by VSO service officers. Direct access to the Board's 1992 and 1993

decisions stored on CD-ROM was established via a shared computer network.

Instruction on CD-ROM data search and retrieval methods, as well as on the use of other

on-line research materials, was also provided to the VSO representatives.

The Board will continue to offer custom-tailored training to all VSOs having

compatible computer hardware whose service representatives are co-located with the

Board in the Board's Washington, DC, office building.

CUSTOMER SERVICE

The Board has been an active participant in the Department's aggressive efforts to

improve the quality of its service to customers. In March 1994, the first of two focus

group meetings was held with representatives from major veterans' service organizations.

Therour primary areas of concern identified by the VSO participants were: decision

timeliness and quality, courteous treatment of appellants, and communications. Decision

timeliness and quality have long been the criteria by which the Board measured its

performance and are areas that received intense scrutiny throughout the fiscal year. The

legislative and administrative initiatives discussed elsewhere in this report focus mainly

on these two areas. Courteous and respectful treatment of appellants is the cornerstone of

the Board's customer service program. In keeping with the department's emphasis on

courtesy and caring, heightened awareness of this basic requirement has been

incorporated into all facets of the Board's operations. The VSO representatives' emphasis

on the need to improve and expand the Board's communications activities provided a new

customer service avenue for the Board to pursue.

At the recommendation of the customer service focus group, the Board surveyed more

than 1,000 appellants who had received Board decisions within the preceding three

22
months. Survey responses echoed the focus group's emphasis on timeliness,

communications, courtesy, and quality as the major areas of concern affecting customer

satisfaction. The Board then developed customer satisfaction standards based on the

results of the survey and the focus group's initial meeting.

A second meeting of the Board's customer service focus group refined the Board's

customer service standards and identified specific areas where improved communication

between the Board and appellants was needed most. An immediate result of these focus

group meetings was the initiation of a project to revise much of the Board's written

communications with appellants. The revisions make the Board's routine correspondence

less formal, less legalistic, and more "customer friendly."

In September 1994, the Board published a BV A Customer Service Standards brochure.

This brochure not only fulfills the requirements of the President's Executive Order 12862,

"Setting Customer Service Standards," but provides appellants with a clear statement of

the Board's commitment to improve customer service. Also in September, the Board

began an on-going customer service training program. In addition to introducing the

Board's customer service standards to front-line employees, the initial training sessions

focused on improved customer relations in direct contact situations, particularly

telephonic contact between employees and appellants.

A comprehensive brochure explaining the entire appeal process was nearly complete at

the end of FY 1994. When distributed in FY 1995, this guide will provide, for the first

time, a single-document source of information on how to file an appeal, what the appeals

process involves, procedural options available to appellants, how the Board operates, and

what kind of communication and product appellants can expect from the Board.

In FY 1995, after publishing the new guide for appellants 8.nd allowing sufficient time

to permit a meaningful assessment of the Board's other customer satisfaction

improvement initiatives, the Board will again survey its customers to evaluate progress to

date and to determine appropriate efforts to further improve customer satisfaction. The

Board is committed to providing service equal to or better than the best availa_ble from

comparable organizations inside and outside of government.

TOTAL QUALITY MANAGEMENT (TQM)

Numerous recommendations of the Board's TQM team were implemented during FY

1994, including the installation of telefacsimile machines in each of the five Control

Divisions. This action alone has greatly increased the efficiency with which

administrative services personnel and V A field offices communicate. Access to the

Board's computerized case tracking system, provided to VSO appeals representatives and

field office personnel during FY 1994, is also an example of how the Board's gras~oots

TQM effort has benefited the Board and the Board's ability to serve its customers better.

23
WORLD WAR II 50th ANNIVERSARY COMMEMORATIONS

In January 1994, the United States 50th Anniversary of World War II Commemoration

Committee designated BV A as an official World War II Commemorative Organization.

Eighteen Board employees volunteered to form and serve on a committee to plan and

conduct activities to honor and thank America's World War II veterans and to increase

Board employees' understanding of the sacrifices and accomplishments of those veterans.

To maintain a continuous awareness of the magnitude and intensity of America's

involvement in the war, the Board established a "This Week in World War II" display on

each floor of the Board's Washington, DC, offices. This display has provided a week-byweek chronicle of significant campaigns, battles, and home front activities.

From September 7 through the end of the fiscal year, the Board exhibited the "BV A

World War II Hall of Fame" in the Board's Lafayette Building lobby and in BV A

common areas. The exhibit included World War II era photographs of several current

BV A employees taken during their WW II military service. Photographs of employees'

family members who served in uniform during World War II or who served on the home

front were also featured. The exhibit provided fact sheets and book marks describing

World War II campaigns, battles, and home front programs for visitors to collect.

The Hall of Fame Exhibit represented a grassroots effort by Board employees to

demonstrate in a very personal way that every claims folder handled by Board employees

is a representation of the life of a real person, not just a collection of paper. The display

also served as a reminder that World War II, like all wars, was fought by everyday people

who are now the Board's customers.

~D5

(~'!:.£. -"

tU

I!.j ~~

The B VA "ww II Hall ofF orne" was one of several activities conducted

during FY 1994 to honor veterans of World War II.

24
PART II

REMARKS OF THE CHAIRMAN

AT THE TffiRD JUDICIAL CONFERENCE

OF THE UNITED STATES COURT OF VETERANS APPEALS

OCTOBER 1994

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

United States Court of Veterans Appeals on October 17, 1994. During his address to

conference participants, the Chairman discussed recent changes that have taken place at

the Board, particularly those that occurred during fiscal year 1994. Portions of the

Chairman's remarks are discussed in greater detail elsewhere in this report, but tpe full

text of the Chairman's presentation, entitled "The Endless Becoming," is presented below.

It provides a useful summary of the dynamic events that characterized fiscal year 1994,

vis a vis significant judicial decisions, legislative accomplishments, and Board-initiated

administrative actions.

INTRODUCTION

Thank you, Chief Judge Nebeker and Judges of the Court of Veterans Appeals. I have

c~osen as my theme a quotation from Justice Benjamin Cardozo that, in my opinion,

aptly describes the condition of the Board of Veterans' Appeals since the enactment of the

Veterans' Judicial Review Act in 1988: "Nothing is stable. Nothing absolute. All is

fluid and changeable. There is an endless 'becoming.' "

As you know, the enactment of the Veterans' Judicial Review Act (VJRA) of 1988

ch~ged the static, almost unchanging world in which the Board formerly existed into a

fluid, changeable environment in which there is the "endless becoming" of which Justice

Cardozo wrote. As Secretary Brown noted today, this new environment is markedly

better than the old in many ways. As Congress intended, the checks and balances of

independent external judicial review of the Board's decisions have provided greater

integrity and .accountability to the V A adjudication system by insuring that V A conforms

to its own rules. It has forced V A to more thoroughly explain its decisions. It has made

V A abandon old practices and replace them with new and unfamiliar ones. As Judge

Kramer succinctly put it in Stillwell v. Brown, "[T]he evolution of V A benefits law since

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

requirements for adjudication." The nascent body of veterans' law that this court is in the

process of creating daily has, at the same time, precipitated the Board's "endless becoming." .

25
SHORT-TERM BOARD INITIATIVES

Unfortunately, while appellants are benefiting from more detailed, well-reasoned, and

consistent decisions, the process of arriving at those decisions has become much more

complex, legalistic, and, necessarily, more time-consuming. Nevertheless, the Board's

statutory duty to render decisions in a timely manner remains unchanged. To meet the

challenge, in January 1994, I presented to Secretary Brown short- and long-term

procedural and administrative measures to improve the Board's productivity and

timeliness. The measures, which were implemented this year, have also contributed to

the Board's "endless becoming."

Limited Certified List Preparation

For example, 'in February 1994, the Secretary approved my suggestion to limit the

preparation of the "Certified List" of the evidence considered in a BV A decision only to

those decisions that have been appealed to the Court, rather than to continue to require the

Board to prepare a "Certified List" for every final decision of the Board, whether it was

appealed or not. We worked out a cooperative arrangement with the Office of the

General Counsel that allows us to create this "Certified List" in a timely manner for use

when a BV A decision is appealed, thus meeting the needs of the Court and the Secretary

while providing better service to veterans.

Advance Docketing

Beginning on the first of February this year, the Board established a new procedure for

docketing appeals. We were able to implement the new procedure with the cooperation

of the Veterans Benefits Administration and the agencies of original jurisdiction within

the Department. The new docketing procedure permits the Board to enter an appeal on

our docket while the veteran's claims file remains at the originating agency. This system

has several advantages for veterans.

Before February 1994, the Board's docketing procedure was based upon the physical

receipt of the veteran's claims file by the Board. The originating agency transferred the

file to the Board when it had completed its action in the appeal. This worked well when a

veteran's records would be at the Board for a relatively short period, most of which was

used in the active review and processing of the appeal.

It was no longer a good system when a veteran's records would be shelved for many

months or even years in case storage waiting for the Board to consider and decide the

appeal. It was also not a good system once the Board's practice of conducting some

hearings at V A regional offices was made statutory by the VJRA, because, logically, the

veteran's file remained at the regional office until after the Board's hearing was held there.

This gave these appellants later docket numbers because the veteran who asked for a

hearing before the Board at a regional office, rather than in Washington, DC, did not take

his or her place on the Board's docket until after the hearing was held. In contrast, the

26
appeals in which veterans had not requested a BV A hearing at a regional office were

placed on the Board's docket without delay when the originating agency finished its

action on the appeal. The significance of the docket number of the appeal rests in the

statutory requirement that the Board consider and decide each case in regular order

according to its place on the docket. As the Board's backlog grew, the disadvantage of

the old docketing system for veterans requesting a BV A hearing at a regional office was

obvious.

We now docket appeals after the appellant has completed his or her appeal by filing a

V AFonn 9, or its equivalent, in response to the statement of the case. Each VA regional

office photocopies the appeal when it is received and sends a batch of appeals to the

Board for docketing approximately once per week.

This improved docketing procedure permits the originating agency to continue to have

access to the file, and permits appellants to obtain a place on the Board's docket at the

earliest opportunity, which, in turn, permits an individual to have his or her appeal

considered and decided by the Board at the earliest possible opportunity.

Temporary Suspension of Hearings

Another initiative implemented this year is the delay, beginning May 1, 1994, in the

scheduling of new hearings until a time proximate to when the Board will decide the

claim. As many of you remember, once appellants became aware of their new statutory

right to have a BY A hearing at a regional office, many of them chose to avail themselves

of this opportunity rather than travel to Washington, at their own expense, to attend a

BY A hearing. In fiscal year 1990, the Board held 440 hearings in the field and 1,244

hearings in Washington. In fiscal year 1993, the Board held 3,533 hearings in the field

and 1,172 hearings in Washington.

Once we had implemented our new docketing procedures so that appellants could

obtain a place on the Board's docket before their BV A hearing was held in the field, it no

longer made sense to take Board members away from considering and decid~ng appeals

in their offices to travel to hold hearings in appeals that would not be considered and

decided for many months or years. In any appeal, it is preferable to hold the hearing as

close as possible to the time of the actual decision in the appeal. The demeanor of the

witnesses is much fresher in the Board member's memory. The evidence presented at the

hearing is ~e most up-to-date. The Board member who held the hearing, and who is

required by statute to participate in the decision, is most likely still a Board member.

This last consideration has become even more important lately, as so many of our Board

members, who have left the Board for better pay and conditions of employment as

Administrative Law Judges, may, by the time the case is ready to be decided, no longer

be available to participate in the decision, even though they conducted the hearing in that

case. .

27
Consequently, we decided to restructure our process of scheduling hearings, both in

Washington and at the regional offices, to emphasize scheduling hearings proximate to

the decision-making in the appeal. We stopped scheduling hearings after April 30, 1994,

until the appeals are ready for the Board's review. We have held a few hearings in

Washington in appeals that were ready for the Board's review, and we anticipate that we

will begin to hold hearings at regional offices early in calendar year 1995.

Fewer Collateral Assignments

In addition, we have reduced some of the collateral duties of Board members to

maximize the time they spend in consideration of appeals. After meeting our labormanagement obligations, I have implemented a revised performance appraisal system for

staff counsel to encourage improved productivity. I have altered the format of our

decisions to make them less time-consuming to produce by reducing the detailed

procedural history of the appeal in the decisions and simplifying the preparatio~ of

remand decisions. I have limited the quality review process solely to substantive matters,

to permit decisions that are substantively correct to be released sooner. I am continuing

to review staffing effectiveness to apply the most resources possible to direct decision

production without impairing the infrastructure of the Board. I am continuing to seek

innovations in case assignment procedures to make the most efficient use of our attorney

and Board member time. And I am continuing to seek incentive awards for BV A

employees to encourage innovation and resourcefulness wherever possible.

LONG-TERM BOARD INITIATIVES

In February 1994, I advised the Secretary that, while the administrative initiatives

implemented by BV A, in the aggregate, will help improve productivity and response

time, they would not restore these traditional measures of organizational effectiveness to

historic levels. Long-term measures must be developed that would, to the extent possible

within this new legal environment, address the underlying causes of the backlog.

The Select Panel on Productivity Improvement

Accordingly, I suggested that the Secretary establish a Select Panel charged with

exploring new approaches that would enable us to fundamentally redefine the way BV A

operates and develop and consider any and all changes that may enable the Board to more

effectively meet the. challenges posed by the current adjudication and appellate

environment. Given the experience of the Blue Ribbon Panel, which was convened last

year to deal with a similar problem in the Veterans Benefits Administration, I thought

that such intensive, concentrated effort would provide significant insight into what the

Board should be "becoming."

.

In response, in March 1994, the Secretary chartered the Select Panel on Productivity

Improvement at the Board of Veterans' Appeals. The Panel was chaired by Mr. Guy

28
McMichael, the Chainnan of the Board of Contract Appeals, and included the Under

Secretary for Benefits and representatives from the leading veterans' service

organizations, the General Counsel's office and the Board. It was charged with

"conduct[ing] a systematic review of the Board of Veterans' Appeals and its relationship

with other Departmental elements, and mak[ing] recommendations regarding the mission,

structure and operations of the Board that will result in more timely processing of

claimants' appeals."

The Panel explored a variety of approaches and presented 12 specific

recommendations to the Secretary in June 1994. The recommendations, which were

subsequently approved by the Secretary, reflected a consensus, if not unanimity, of the

group. At least in part, the recommendations involved not only the Board, but other

elements of the Department. We at the Board are now in the process of implementing

each of these recommendations.

First, the Panel recommended that the Department revise its timeliness measutement

system to address the claimants' real concern --the total time from the filing of a claim to

the receipt of a final VA decision. The Board has begun to implement such a new

timeliness measure, in addition to others that address budgetary and future planning

needs.

The Panel also advised that the Veterans Benefits Administration (VBA) continue its

aggressive efforts to implement the recommendations of the Blue Ribbon Panel that, in

1993, examined the problems causing delay in the adjudication process at the Regional

Office (RO) level. The Panel stressed that VBA should continue to give a high priority to

its efforts to improve the development of evidence at the RO, which would ultimately

reduce the number of cases remanded to the RO by the Board for needed development.

In addition, the Panel counseled that expedited treatment be afforded to cases that have

been remanded to the RO by the Board. The Under Secretary for Benefits directed that

this latter measure be implemented immediately.

The Panel also recommended that the Board be granted the authority to Rerforrn an

initial review or "prescreening" of appeals in advance of the time when that case would

ordinarily be considered and decided in docket order. This procedure would enable the

Board to discern any deficiencies in the record to be identified and corrected at the

earliest possible time when the case was still awaiting final consideration on the merits

based on i~s place on the docket. Language amending 38 V.S.C. § 7107 to specifically

authorize such prescreening procedures is included in legislation which has been enacted

by Congress and is currently being considered by the President. [Note: On November 2,

1994, the President signed this legislation into law as Pub. L. No.1 03-446, the

"Veterans' Benefits Improvements Act of 1994. "J

The Panel's recommendations also included providing better and more comprehensive

training and performance measurement for BV A staff counsel; modifying the Form 9 to

encourage appellant consultation with a service representative; seeking legislation to

29
increase hearing options by authorizing the conduct of BV A hearings, at the claimant's

option, by a RO official acting as an agent for the Board; exploring the possibility of

expanding the geographic locations at which hearings may be held by use of

teleconferencing; improving the training and methods of evaluating performance of staff

counsel; increased use of technology, including a pilot project employing document

imaging, as well as the expanded use of CD-ROM and other on-line technology; and

resolving attrition problems at the Board resulting from the loss of pay equity between

ALJs and Board members and the imposition of terms on the Board member position.

In my opinion, the most interesting recommendations of the Panel focused on

redefining the Board's role in the VA benefits adjudication system. The Panel concluded

that the Department should increase individual accountability in the appellate

adjudication process to insure the highest quality consideration of a claim's merit and to

improve timeliness. It recommended that the Secretary promulgate regulations granting

the Board complete authority to develop, consider and dispose of an appeal once the

substantive appeal (or "Form 9") is filed. This represents a significant change from the

current procedure for dealing with cases in which the record is insufficient for appellate

adjudication on the merits, which generally requires that the Board must remand such

cases to the agency of original jurisdiction, which is charged with developing the record

and then re-adjudicating the claim.

The Panel suggested that the new procedure, which would permit the Board to directly

obtain evidence or otherwise develop the claim without the necessity of remanding the

case to the RO for needed development and re-adjudication, be perfected in a trial or pilot

program. Claimants would have the ability to "opt out" of the revised system and

continue to have their appeals processed in the current manner.

While the Panel's recommendation is a good one -one which meri~s and will receive

thorough exploration in a pilot project -it only partially addresses the larger question of

what the Board is or should be "becoming."

A JUDICIAL HYBRID

The Board is now a judicial hybrid --in part, a tribunal of original jurisdiction, which

develops the record and affords a case de novo review, and, in part, an appellate body,

charged with reviewing the correctness of the decision of the agency of original

jurisdiction based on the application of the law to the facts, as contained in the record on

appeal. The broader question, one which I will return to later, is what should the Board

become in the era of judicial review?

Recent legislation has helped address this issue.

.

Since its inception more than 60 years ago, the Board has made decisions through

three-member panels composed of lawyers and physicians--panels which have reflected

30
the make-up of the rating boards at the Regional Offices. As we know, VJRA has

fundamentally altered the way we can make decisions at the Board. Not only did the

1988 law require articulation of the "reasons and bases" for our decisions, but our

reviewing courts are requiring decisions that look more like judicial opinions than before.

With the Colvin decision in 1991, it became clear that we could no longer employ our

physician members to do what they had historically done: apply their own knowledge of

and experience in medicine to the appeals before us.

Recognizing this change, Secretary Brown, in concert with the Board and the

Congressional Veterans' Committees, worked diligently and effectively for legislation

which has fundamentally altered the decision-making process at the Board. On July 1,

the President signed Pub. L. No. 103-271, which has, for our purposes, two key features:

it empowers the Chairman to assign cases to individual Board members and it removes

the ceiling on the number of Board members.

.

BOARD OF VETERANS' APPEALS ADMINISTRATIVE PROCEDURES

IMPROVEMENT ACT

This new law speaks to two key issues of "becoming" at the Board

First, in authorizing single-member decisions, the new law recognizes the judicial

nature of the Board's decisions. Once again, the question as to the precise judicial nature

of the Board arises-- is it a trial court, an appellate court, or some new admixture? --but

there can no longer be a question that what we do is render judicial decisions. We

examine the record. We may look at more than the original decision-makers looked at.

But we will make our decisions in classic judicial manner: applying the law as we

understand it as lawyers to the facts which are before us.

For good or ill, the days--if there were in fact such days--of "rough justice" at the

Board are gone. The justice we render will be supported by legal decisions of skilled

individuals unafraid to subject their judicial skills to the scrutiny of the VeteraI)s Court,

the Federal Circuit and the Supreme Court. .It is a result which is unconditionally good

for veterans and their families.

Second, by removing the limit on the number of Board members--67, counting the

Chairman and Vice Chairman--the Congress has given the Secretary the flexibility to deal

with potential reorganization at the Board. As I speak to you today, we do not know

what, if any, reorganization may be needed. We are, after all, still "becoming." But, in

my view, the Congress has acted wisely in leaving that option to those who manage this

crucial part of the veterans' system.

31
ADMINISTRATIVE LAW JUDGE PAY COMPARABILITY

In addition to the changed nature of the Board's decision-making process, the Board

has been facing, for the past several years, a mounting crisis: at the time when we need

experienced decision-makers most, we were losing them to the ranks of administrative

law judges, primarily at the Social Security Administration.

As many of you know, the work of a Board member and the work of an ALl at Social

Security are similar in many ways. Until 1988, the security and compensation of the two

positions were about the same. In 1988, the VlRA established, for the first time, nineyear terms for Board members, while ALls remained "career absolute." Then, in 1991,

Congress created, for the first time, a substantial gap between the compensation of Board

members and ALls. And as the Social Security Administration knew, Board members

were extraordinarily well qualified for ALl positions that required strong backgrounds in

law and medicine.

The result was predictable. In July 1993, there were 55 lawyer-members at the Board.

Over the next 15 months, the Board lost nine of them to the Social Security

Administration. The vast majority of the remainder were either on the register to become

ALJs or were in the process of completing their applications. We faced a "brain drain" of

enormous proportion.

Once again, however, the Secretary, in concert with the Board, the BV A Professional

Association, the veterans' services organizations and the Congressional Veterans'

Committees, worked with extraordinary dedication to produce a pay equity bill which

will, we think, help us retain the best and the brightest for the Board.

The pay gap is closed. Tenns are extinct. A reasonable system of performance

evaluation will soon be in place.

We were in danger of "becoming" the farm team for Social Security. I think that now

the Board will not only inspire the loyalty that made the losses to Social Se.curity so

painful, but it will become a career goal for a new generation of bright, caring lawyers.

That is a result unconditionally good for veterans and their families.

A JUDICIAL BECOMING

The Board is also "becoming" in the judicial arena.

Several years ago, when the Court was still in its nascent state, Chief Judge Nebeker

addressed the Board at one of its quarterly luncheons. He presciently noted that in the

first few years of its operation, the Court would establish its "footprints in the sand,"

those series of landmark decisions that would provide the pathways of its future

jurisprudence. While the Court's trailblazing is hardly concluded, its "footprints" in many

32
important areas are now well established. At times, the Court has "walked the cat

backwards," to borrow a phrase from Judge Holdaway, on its own volition and redefined

its direction. On other occasions, the Court of Appeals for the Federal Circuit's

"footprints" have changed the course, as, for example, in Smith and Mayer. The United

States Supreme Court will directly enter the new judicial environment in its consideration

of the Gardner case this term. In short, we see that the judicial review process

established by the VJRA is' working and is continuing to evolve. It too is "becoming."

In the past year, the Court has changed the Board's course in several respects. In

Grivois, this Court suggested that V A should be more attentive to the threshold issue of

whether a claim is well-grounded and thereby avoid adjudicating implausible claims at

the expense of delaying well-grounded claims. In Similes, the Court adopted a more

expansive view of the Board's jurisdiction to review certain determinations of the

Veterans Health Administration than historically had been the Board's view. In

Trammell, the Court examined the Board's long-standing practice of forwarding copies of

Board decisions to the veterans' service organizations by "flat mail" --i.e., internal mail --

and concluded that the practice did not conform to the statutory requirement that

decisions be "mailed" --i.e., by U.S. Mail --to the representative. Each of these

decisions has resulted in changes in the Board's adjudicative and administrative practices.

MEDICAL OPINIONS, AUSTIN v: BROWN

The Court's decision in Austin v. Brown has had the greatest impact on the Board's

"becoming" in the past year. Prior to enactment of the Veterans' Judicial Review' Act,

there were relatively few constraints on how BV A utilized the expertise of its staff

physicians. Physicians were used interchangeably as both decision-makers and providers

of expert advisory opinions, as well as sources of medical training for BV A legal staff.

The Court's decisions in Gilbert, Murphy, and Colvin significantly altered the role of the

BV A physician. Prior to these decisions, Board medical adviser opinions were not

incorporated into appellate decisions. In June 1991, I issued Chairman's Memorandum

01:91-21 which directed, in pertinent part, that all opinions from any physician at the

Board be reduced to writing and added to the record and that Board physician opinions

must be appropriately discussed in the decision, to the same extent as any other item of

relevant evidence. However, the Court in Austin raised serious questions concerning the

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

opinions. At this time, the Department is considering a regulatory change which will

expressly authorize the Board to obtain opinions on the record from its own staff medical

advisers. The Board is also looking to sources outside BV A to meet its needs for expert

medical opinions.

Traditionally, the Board turned to the Veterans Health Administration, the Anned

Forces Institute of Pathology and selected medical schools as our sources of" such

opinions. Of these three sources, selected medical schools have been used to obtain the

vast majority of BV A's outside expert medical opinions. Unfortunately, the Board has

33
been unable to consistently obtain timely and responsive advisory opinions from this

group of providers.

BV A and the Veterans Health Administration (VHA) have entered into an agreement

whereby BV A may obtain advisory medical opinion services on a reimbursable basis

from VHA. While BV A has requested approximately 20 opinions from VHA annually

over the past two years, we anticipate that as many as 2,000 opinions could be requested

under the contemplated arrangements. These opinions will be prepared by physicians

employed by or under the direction of VHA. We believe that such an arrangement will

provide a timely alternative to the principal option currently available when a medical

question arises in the course of the BV A appeal adjudication process, i.e., remanding an

appeal to the AOJ in order to schedule a medical exam at a nearby V A medical center to

obtain a medical opinion on an issue in question.

We have explored what the Board is becoming through changes in administrative

procedure, legislation, and judicial precedent. I think we can all agree that the entire

veterans' benefits adjudication system is now fundamentally different than it was prior to

judicial review and continues to change on almost a daily basis. Although these systemic

changes have resulted in better decisions, a lengthier processing time appears to be a

unwanted consequence of the profound alteration in the way V A must do business.

However, it must be remembered that this is a new era for which realistic expectations,

not only of timeliness, but of the role of the Board of Veterans' Appeals in the veterans'

benefits adjudication process, have yet to be defined.

THE BOARD'S ROLE IN THE JUDICIAL REVIEW ERA

Once again, I direct your attention to the larger question that remains unanswered --

what is the proper role of the Board of Veterans' Appeals in the era of judicial review?

The VJRA and the decisions of the Court have greatly changed the Board's legal analysis

and decisional product. Nevertheless, the current role of the Board appears to have

remained relatively unchanged from the time that BV A was the "court of last reso_rt" for a

veteran's appeal.

At this point in time, in terms most familiar to lawyers, the Board remains a curious

hybrid. It is, in part, an appellate tribunal, reviewing the adequacy of the decision of the

originating agency, and at the same time, in part, a trial court, providing a form of de

novo review of the original claim. This construct served the Board well at a time when it

was the "court of last resort" in the system for adjudication of entitlement to veterans'

benefits. It served to provide the veteran with an additional opportunity to develop

evidence that would support his or her claim, as well as another opportunity for the

adjudication of the case by a panel of experts that had not previously considered the

claim. .

34
However, under this system, the Board also functions as an appellate body --the

development of the record is left to the agency of original jurisdiction and, absent a

specific waiver of consideration by the originating agency, the claim generally must be

re-adjudicated by the originating agency before it can be considered on appeal by the

Board. This adds considerable delay to the appellate process. For example, a single

remand, on the average, adds almost two years to the total time it takes to finally decide.an 

appeal.

This hybrid also results in some uncertainty as to the respective obligations of the

Board and the originating agencies, the V A, the Courts, and the veterans we serve.

Moreover, while its procedural requirements provide an individual veteran the

opportunity to have "another bite of the apple," by having his or her claim re-reviewed by

the agency of original jurisdiction, the aggregate effect is to directly compromise the

timeliness with which all veterans receive a final decision in their claims. I note that in

the past fiscal year, we have dismissed the claims of 403 veterans who have died while

waiting for a final decision on their claim. I believe we all agree that this is intolerable

and that, at some point, justice delayed becomes justice denied. I believe that we are

certainly close to that point.

Will veterans be better served by a fundamental change, by making the Board either

purely a tribunal of original jurisdiction or purely an appellate body? The

recommendation of the Select Panel to test on a pilot basis the development of the record

directly by the Board provides us the opportunity to experiment with one of these

modalities, at least in the development of evidence. It does not clearly answer the basic

question of the proper role of the Board in the new age of judicial review. This is a

question which, in my judgment, has and will continue to recur in the legislative and

judicial arenas.

In order to make the system work, we must, at some time soon, decide what we want

the Board to become: .

Should the Board remain as it was envisioned prior to judicial review? S_hould the

Board serve as a pure administrative appellate body, deciding cases (for the most part)

solely on the record received from the agency of original jurisdiction? Or should the

Board be structured as a true intermediate administrative tribunal, affording the veteran

de novo consideration of fact and law and .directing development for its own independent

review, without referral back to the originating agency? Would changing the Board to

either a pure appellate tribunal or a true intermediate level trial court result in a more

efficient, more timely appellate adjudication process without curtailment of a claimant's

access to the system or to entitlements?

How can we continue to be fair to veterans, provide an adequate record for judicial

review, and still cut down on the administrative overhead and further stem the increase in

the amount of time involved in decision-making? Can we expedite the process without

any real compromise of a veteran's rights?

35
These are difficult challenges. But they will be met, because they must be met.

Because, despite our endless becoming, our goal remains unchanged --to provide justice

to our nation's veterans and their families, and in the timely manner that the law and

fundamental notions of fairness require. Let me assure you, we at the Board and the

Department of Veterans Affairs are resilient. As one author observed,

Manifestly judicial refonn is no sport for the short-winded or for lawyers

who are afraid of temporary defeat. Rather must we recall the sound

advice given by General Jan Smuts to the students at Oxford: "When

enlisted in a good cause, never surrender, for you can never tell what

morning reinforcements in flashing armor will come marching over the

hilltop."

If you are very, very quiet, you may hear them coming. Thank you very much.

36
PART III

During FY 1994 BV A produced a total of 22,045 decisions. This represents a 16.5

percent reduction from FY 1993, when 26,400 appellate decisions were produced. The

reduction is largely attributable to the Board's implementation of precedent decisions of

the Court. For example, in FY 1994, 48 percent of the cases were remanded to V A

regional offices, compared with 44 percent in FY 1993. A breakdown of the disposition

of the Board's decisions by category of appeal is provided below.

Category Total Allowed Remanded Denied Other

4979 956

240 111

103

18

441

91

104

68

49

16

85

18380

963

278

29

1094

240

409

210

197

34

211

3394

80

33

0

113

7

70

63

68

2

32

9051

532

93

9

415

109

201

76

74

13

69

49

2

125

33

34

3

6

3

25

Disability compensation

Disability pension

Medical

Insurance

Death

Training

Waivers

Loan guaranty

Reconsiderations

Character of discharge

Miscellaneous

Totals 22045 3862 10642 6194 1347

Days

Annellate Processing Categories FY 1993 FY 1994

Notice of Disagreement to Statement of the Case 66 70

Statement of the Case to Substantive Appeal 62 59

Substantive Appeal to the BV A 215 244

Processing Time through the BV A 246 359

Average 

Remand Time Factor ~ 1.Q1

Total Processing Time All Categories 659 839

37
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FY Decisions Allowed Remanded Denied Other

1992 33,483 15.7% 50.5% 32. 7% 1.1%

1993 26,400 16.9% 44.0% 36.9% 2.2%

1994 22,045 17.5% 48.3 % 28.1 % 6.1%

Estimated

FY 1992 FY 1993 FY 1994 FY 1995*

22,045

35,465

47,148

781

442

49.9

$1,127

6891

1,9961

28,000

38,000

57,148

745

449

62.4

$1,0351

33,483

38,229

21,981

240

411

81.5

$684

1,394

1,258

26,400

38,147

33,728

466

441

59.9

$1,046

1,172

3,533

Decisions

Appeals Received

Appeals Pending

Response Time

FTE

Decisions per FTE

Cost per Decision

Hearings -V ACO

Hearings -Field

1 Hearings have been suspended since May 1994 in order to conduct hearings at a time proximate

to the time an appeal is actually considered by the Board. The scheduling of hearings will resume

in early FY 1995.

39
Days

800 I 7R1

700 745

600

200

FY 1992 FY 1993 FY 1994 FY 1995*

* Estimated

Response time is defined as the number of days it would take BV A to

render decisions on all pending appeals at the processing rate of the

immediately preceding one-year timeframe

35000

30000

25000

20000

15000

10000

5000

0

FY92 FY 93 FY 94 FY 95*

* Estimated (FY 95 figure is based on single-member decisions

implemented July 1994)

40
Average Processing Time for Appeals Decided in September 1994

0% 20% 40% 60% 80% 100%

0 Begin Admin. Rep. Review oC.se Storage. Board Section OCR & Ending Admin. .Misc. Admin.

7% 13% 60% 13"/. 3% 4"/.

FY 92 FY 93 FY 94 FY 95*

* Estimated (FY 95 figure is based on single-member decisions

implemented July 1994)

41

PART IV

ADDITIONAL INFORMATION PROVIDED PURSUANT

TO STATUTORY REQUIREMENTS

38 V.S.C. § 7101(d)(2)

The following infornlation pertaining to preceding fiscal year(s) is required by

38 V.S.C. § 7101(d)(2):

Number of cases appealed to BV A during FY 1994: 18,067*

Number of cases pending before BV A at the start of FY 1994: 33,728

Number of cases pending before BV A at the end of FY 1994: 29,750*

Number of cases filed during each of the 36 months preceding FY 1995:

Estimated Number of

New Notices of

Disagreement

Received in the Field

Number of Appeals

Received at the BV A

Month FY94 FY93 FY92 FY94 FY93 FY92

2,457

3,114

3,010

2,393

1,638

934

627

450

697

989

858

2.Q.Q

3,360

2,951

2,956

2,720

3,074

3,766

2,927

2,766

3,090

3,064

3,882

~

3,665

3,255

3,233

3,188

3,360

3,652

2,870

2,650

2,857

3,335

3,451

Uti

4,673

5,098

5,167

5,065

4,754

6,113

4,670

5,229

4,703

4,484

6,291

~

5,386

5,416

5,421

4,567

4,557

6,457 -

5,715

5,573

5,635

5,305

6,109

Wi

3,694

6,638

6,210

6,474

5,777

6,472

5,978

5,506

5,900

5,939

5,525

ti12

October

November

December

January

February

March

April

May

June

July

August

September

38,229 61,813 65,676 69,928 * 18,067 FY Total 38,147

* Includes only appeals physically received at the Board. Due to the large number of cases already at the Board

awaiting review, claims folders other than returned remands have not been transferred from regional offices to the

Board since February 1994. In the future, an appeal will be transferred to the Board when the Board is ready "to begin

its active review of the associated case.

43
(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

PaIiY

Average Elapsed

Processing Time Time Interval

Notice of Disagreement Receipt

to Statement of the Case Issuance

Field Station 70 days

Statement of the Case Issuance

to Substantive Appeal Receipt

Appellant 59 days

Substantive Appeal Receipt to

Certification of Appeal to BV A

Field Station 244 days

Receipt of Certified Appeal to

Issuance ofBV A Decision

BVA 359 days

Average Remand Time Factor Field Station 107 days

(E) Number of members of the Board at the end o-fFY 1994:

Number of professional, administrative, stenographic,

clerical, and other personnel employed by the Board

at the end ofFY 1994:

TOTAL:

57 members

427 employees

425.4 FTE

Number of acting members of the Board during FY 1994:

Number of acting members between July 1 -September 30:

Number of cases in which each such member

participated since the initiation of single-member

decisions on July 1, 1994:

11

6

425 cases

II. 38 V.S.C. § 7101(d)(3)

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

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

Estimated number of cases that will be appealed to the BV A

Fiscal year 1995: 38,000

Fiscal year 1996: 38,000

44
(B) Evaluation of the ability of the Board (based on existing and projected personnel

levels) to ensure timely disposition of such appeals as required by 38 V.S.C. § 7101(a):

(1) Background on BV A Timeliness Projections. The indicator used by the

BV A to forecast its future timeliness of service delivery is BV A "response time" on

appeals. By taking into account the Board's most recent appeals processing rate and the

number of appeals that are currently pending before the Board, BV A response time

projects the average time that will be required to render decisions on that same group of

pending appeals. For response time computation purposes, the tenn "appeals pending

before the Board" includes appeals that have been certified for BV A review but are being

held in the field pending BV A action. BV A response time is computed by first

detennining the BV A's average daily appeals processing rate for a recent given time

period. This is detennined by dividing the number of appeals decided by the calendar

day time period over which those appeals were dispatched. BV A response time is then

computed by dividing the number of appeals pending before the Board by the average

daily appeals processing rate. As an example, BV A response time for FY 1995 is

computed as follows:

Estimated 28,000 Decisions in 'Y 1995 -;- 365 Days = 76.71 Decisions per Day

57,148 Appeals Pending before the BV A (end ofFY 1995)

Day = 745 Day Response Time on Appeals

76.71 Decisions per

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

resources, the estimate of BV A response time, as given in the Board's budget submission

for FY 1996, is 745 days for FY 1995 and 687 days for FY 1996. These response time

projections are contingent upon the appeal receipts estimates for FY 1995 and FY 1996

shown in paragraph II(A), above.

ESTIMATES OF FUTURE TIMELINESS AND PRODUCTIVITY

The Board anticipates that the precedent decisions of the United States Court of

Veterans Appeals will continue to impose additional requirements for case analysis and

development. Because decisions of the Court are effective immediately upon issuance,

precedential decisions may require that the Board fe-adjudicate a large number of cases

already adjudicated, but not yet dispatched from the Board. Compared to FY 1994, when

personal hearings were suspended for the last five months of the year, the amount of time

Board members spend deliberating cases will, necessarily, be reduced as a result of the

resumption of personal hearings in FY 1995.

Estimates of the Board's future timeliness and productivity can only approximate the

impact of the fact that the Board's rate of remanding cases to the regional offices steadily

increased from the latter part of FY 1991 through FY 1993. The remand rate in FY 1994

was 48 percent. The majority of these cases will eventually be returned to thc Board for

45
adjudication, but the Board cannot anticipate when the requested development will be

completed. The estimates also do not include the additional cases returned annually to

the Board by the Court of Veterans Appeals for re-adjudication. This number has also

been rising.

It is anticipated that these trends of the past fiscal year will continue: (1) the directives

of the Court will continue to require the Board to expend additional time, effort, and

resources in producing appellate decisions; (2) resumption of hearings, suspended since

May 1994, will diminish the time that Board members may dedicate to case deliberation;

(3) the Board will continue to stay the adjudication of certain classes of cases pending

resolution of appeals from decisions of the Court of Veterans Appeals; (4) the Board will

continue to remand a large proportion of cases to the V A regional offices for further

development; and, (5) the Board will continue to receive cases remanded for readjudication from the Court of Veterans Appeals. These trends will likely continue to

slow decision production, but it is unclear to what degree. In addition, unanticipated

factors may arise to affect decision production.

As previously noted, single Board member decision authority and other administrative

and legislative initiatives will, in time, ameliorate the decline in BV A decision

productivity and average response time. It is unlikely, however, that the average response

time realized prior to judicial review will be regained.

46