DEPARTMENT OF VETERANS AFFAIRS

Chairman, Board of Veterans' Appeals

Washington DC 20420

February 26, 1996

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 1995. Parts I and II of this

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

fiscal year (FY) 1995 and the projected activities of the Board for FY 1996, as is

mandated b)' 33 V.S.C. § 7101(d)(1). Thc spccific information rcquired b)' 38

U.S.C. § 710 1 (d)(2) and (3) is contained in Part III of this report.

Fiscal year 1995, like the previous two fiscal years, was one of tremendous

change at the Board. I believe the combined effects of this past year's legislative

actions and the initiatives that we have instituted will result in a more timely

system while continuing to deliver a high quality product.

I thank you and Deputy Secretary Gober 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.

Charles Cragin

Enclosure
TABLE OF CONTENTS

PART I. THE BOARD OF VETERANS' APPEALS

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..7

..7

..9

..9

10

10

12

12

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HISTORICAL 1995: INNOVATION Board Organizational Administrative Enacted Legislative 193388 Geographic Decision Decision to to Tnitiati,'e: OVERVIEW 198895 Legislation Teams Preparation Initiatives Alignment (Before (Since Realignment Initiatives AND Providing Judicial REALIGNMENT Judicial Copies of Review) Review) the Board of Decision~

MEMBERS SELECTION REVIEW ORGANIZATIONAL THE EVOLVING Board Claims OF to OF ATTORNEYS' OF Claimants Initiative: File THE BOARD ROLE Security BOARD .DIAGRAM and Representation OF MEMBERS AND Representatives THE OF AGENTS' VETERANS' BVA by PHYSICIAN Organizations FEE APPEALS AGREEMENTS.

PROFESSIONAL AUTOMATION CUSTOMER WORLD REPRESENTATION LIAISON On-Line Congressional Correspondence Liaison WAR ACTIVITIES SERVICE Research with with IIINITIATIVES 50th TRAINING Veterans' Government BEFORE Liaison ANNIVERSARY Tools Activities Service THE Study BOARD ~ Organizations Groups COMMEMORATIONS ..

PART II. FY 1995 STATISTICAL DATA

TABLES AND GRAPHS ,29

III

13

.14

.15

16.17

18

.18.20.20

.20

20

21

21

22

22

23

13

25

26
PART III. ADDITIONAL INFORMATION PROVIDED PURSUANT TO

STATUTORY REQUIREMENTS

35

; 37

, 38

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

IV
PART I

THE BOARD OF VETERANS' APPEALS

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

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

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

are presented annually for appellate review. 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 gu.arantees,

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

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

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

charged by attorneys and agents for representation of veterans before the Department.

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 1 960s, the Board was enlarged to 14 sections of three members and the scope

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

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

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

Appellate policy also was significantly altered with the enactment of Public Law No. 87-

666, effective January 1, 1963, which required the agency of original jurisdiction to furnish

an appellant a "Statement of the Case," a document containing a detailed recitation of the

evidence, applicable laws and regulations, and explanation of the rationale underlying the

denial of the claim. Also in 1963, the Board was granted statutory authority to obtain an

advisory opinion from one or more medical "experts who are independent of VA in cases

involving complex or controversial medical issues. The Board's Rules of Practice were

extensively revised and were first published in the Code of Federal Regulations in 1964.

Currently, the Board's Appeals Regulations and Rules of Practice are contained in Parts. 19

and 20, respectively, of title 38 of the Code of Federal Regulations.

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

of the aftermath of the Vietnam War. In 1977, the number of new appeals exceeded 60,000.

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

from the date of filing of the notice of disagreement until the date of issuance of a final B VA

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.

1988 to 1995 (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. Few, if any, decisions of

the Court have resulted in an improvement in decision productivity or timeliness in the VA

adjudication system. However, judicial review has resulted in more consistent and detai.led

decisions.

2
Response time and decision productivity have been degraded by the impact of changes

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

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

of the Act. As a result, BVA decisions are now longer and more complex than they were

prior to judicial review. Factors affecting the timeliness of appellate processing include 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 formal 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 formal Rules of Practice; the added responsibilities of

attorney fee agreement processing and review; the readjudication of cases remanded by the

Court to the Board and those returned from VA regional offices to the Board following

completion of development requested by the Board on remand.

While much of the Board's degraded timeliness can be directly or indirectly atttibuted to

the effects of the oversight of B VA brought about by the V 1RA, two Court decisions issued

shortly after tIlt: <.:losc of FY 1995 appear to indicate a change of position by th~ Court

regarding its oversight authority. In Cleary v. Brown, No. 91-2006 (U.S. Vet.App. Oct. 5,

1995), the Court concluded that it does not have authority to retain general and continuing

jurisdiction over a decision remanded to the Board for a new adjudication, noting that

"[ n ]owhere has Congress given this Court either the authority or the responsibility to supervise

or oversee the ongoing adjudication process which results in a BVA decision." Similarly, in

a single-judge nonprecedential decision, Morris v. Brown, No. 95-941 (U.S. Vet. Oct. 26,

1995), the Court observed that "there is a heavy workload at the BVA," and that "[i]t would

be most unwise and injudicious for this Court to intervene and PUiport to establish priorities

and micromanage the caseload of the BVA."

As the graph to the right

shows, BVA's response time

increased from 139 days at the

end of FY 1991 to 466 days

at the end of FY 1993 and to

781 days at the end of FY

1994. By the end ofFY 1995,

response time decreased to

763 days. The Board's

original response time

estimate of 640 days for FY

1996 has been revised to 675

days as a result of work days

lost due to the government

shutdowns in November 1995 Response time is defined as the number of days it would take

and January 1996. BVA to render decisions on all pending certified appeals at the

processing rate of the immediately preceding one year time frame.

3
The Board now

schedules personal

hearings to be held

at a time proximate

to when (hat appeal

will be reviewed and

decided.

In FY 1995, there were 66,104 notices of disagreement filed. This represented a 7 percent

increase over the 61,813 filed in FY 1994. However, 39,990 appeals were actually filed in

FY 1995. Th~se were cases c.::rtified in the field as being ready for BVA rc\-ic\.,.. plus tho,;c

cases returned to BVA for review subsequent to remand development.

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

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

In FY 1994, the increase in BVA 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. Personal hearings were temporarily suspended in May 1994 to reduce

the long delay between the hearing and the time the appeal was reached and considered on

the Board's docket. Hearings were resumed on a limited basis in January 1995. The

hearing-to-review lag time had often rendered information provided during the hearings

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

hearings conducted during FY 1995 were held at a time proximate to when the Board began

its active review of a case in order to maximize the timeliness of the information obtained

during the proceeding.

The VJRA removed an historic $10 limitation on the fees that may be charged by attomeysat-law and claims agents who represent VA claimants. 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.

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

Since 1991, Court decisions have been binding on VA as of the date they are issued. This

often requires the Board to stop the flow of cases, identify cases affected by a Court decision,

and readjudicate them. The Court has ruled that the Board must consider every potentially

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

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

4
even in circumstances where a claim is not well-grounded and, hence, VA's "duty to assist"

under 38 V.S.C. § 5l07(a) does not apply, VA is required by 38 V.S.C. § 5l03(a) to notify

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

application for benefits.

On reconsideration of prior BVA decisions, the Board must entirely readjudicate the

case on a de novo basis, as if the prior decision had never been entered, an action that

expands both the complexity of decision-making and the workload of the Board. Further,

in Hennann v. Brown, 8 Vet.App. 60 (1995), and Frisca v. Brown, 8 Vet.App. 90 (1995), the

Court held that prior to filing a petition for a writ of mandamus (seeking to compel certain

action by the Board), a petitioner must file a motion for reconsideration of a Board decision,

even though a remand is in the nature of a preliminary order and does not constitute a final

decision of the Board (38 C.F.R. § 20.1100), and the Board does not, for the most part, grant

reconsideration of non-final decisions (38 C.F.R. §§ 20.1000-.1001).

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

binding decisions issued by the Court subsequento the Board's original decision. Similarly,

the Bo:1rd's own rem:1nd r:1te is :1bout t\vice that e:-:perienced before judicia! revie\\' began.

Chief among the Board's reasons for remanding cases are the need for more recent medical

examinations, the need to obtain appellants' private medical records, and the need for

additional due process development, such the holding of a requested hearing or the de novo

consideration by regional office personnel of additional issues identified as having potential

applicability, as previously discussed. Other cases must be remanded because of Court

decisions issued between the time a VA field adjudication is made and the time it comes

before the Board on appeal. Readjudication of decisions remanded by the Court to the

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

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

obtain resolution of their cases.

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

or bases" also has had a profound impact on the way the Board adjudicates cases, not only

by making Board decisions longer

and more complex, but by

imposing a more adversarial tone

to Board decisions; in contrast to

the past. For example, the Board

is now required to make a candid

assessment of the credibility of lay

testimony and can no longer

decide cases on the basis of the

medical expertise of its members,

relying instead solely on the

evidence of record. The Court has

raised serious questions about the

fairness and impartiality of the

The 

body of veterans' common law developed in the six years

since judicial review began now fills seven bound volumes.

5
Board's procedures for utilizing medical adviser opinions from physicians employed by the

Board. The role of BVA's physicians is discussed in detail on pages 18 -20 of this report.

Still other Court decisions require the Board to be more technical and "legalistic" in its

decision writing.

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

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

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

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

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

Court, deciding that the clear and unmistakable error review authority in 38 C.F.R. § 3.105(a)

relates only to review of agency of original jurisdiction decisions and not those of the Board.

The Court of Appeals later found that the Court had no jurisdiction over "acts or decisions

of the Chairman absent some underlying final decision by the board."

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

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

l:nnanceu prodUCli \'it)'. Also in rl' 1994, the Board implemented revised docketing

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

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

procedure eliminates the disadvantage previously experienced by appellants who requested

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

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

Many of the initiatives implemented during FY 1995 and the preceding year had been

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

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

elements of the Department other than the Board and some required statutory and regulatory

action before they could be implemented. Specific Panel recommendations under the

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

appropriate sections of this report, including: revised timeliness measurement standards;

pay disparity and tenn appointments; attorney training; technological improvements- such

as on-line research tools and document imaging; and video-conferenced hearings.

The Board provides each appellant a pamphlet

detailing BVA's customer service standards.

6
1995: INNOVATION AND REALIGNMENT

The statutory authority for organization of the Board is contained in chapter 71 of title 38

of the United States Code. The Board's activities are directed by a Chairman, who is "directly

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

by the President of the United States with the advice and consent of the Senate and serves

for a term 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. (BVA's organization

chart is shown on page 16.)

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

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

terms of office for Board members that were prescribed by the VJRA in 1988 were eliminated

by the "Veterans' Benefits Improvements Act of 1994," discussed on pages 12 -'13. This

legislation also restored the historic comparability between Board member pay and that of

Admillistrative Law Judges. Board members arc the only fcd~ral cmployees at this level

that require Presidential approval for appointment. The Chairman serves at the Assistant

Secretary (PAS IV) level, and the Vice Chairman and Senior Deputy Vice Chairman are

members of the Senior Executive Service.

For administrative purposes, BVAhas been 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. Prior to Pub. L. No. 103-

271, the law required that three member panels review and decide each appeal. To support

the three-member panel requirement, the Board was divided into 21 decision-making units

(Board sections), each generally composed of three attorney Board members, one of whom

was designated Chief and bore the supervisory responsibility for the section. A professional

staff of eight or nine staff counsel, attorneys graded from GS-9 through GS-14, ~ere assigned

to each Board section. This organizational structure underwent significant dramatic alteration

in FY 1995, designed to provide a new platform for management that was not bridled by a

statutorily imposed structure. Implementation of this new Board structure began at the

close ofFY 1995.

Organizational Realignment of the Board

The organizational structure of the B<?ard underwent relatively few major changes for

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

the BVAAdministrative Service a few years earlier could be considered a major change for

that component of the BV A operation, that change remained restricted to the AdmiRistrative

Service. BVA continued to be divided into its two principal components, the Professional

and Administrative Services. Functional responsibilities and authorities remained basically

'7
unchanged from those in effect in the 1980s and earlier, and the organizational structure

reflected the prevailing management philosophies of that era. The "Board section"

arrangement also reflected the legal requirement that decisions be issued by panels, usually

consisting of three members. BVAremained a highly centralized organization with relatively

little delegated authority other than the authority of Board members to decide appeals.

The single member decision-making authority granted by Pub. L. No.1 03- 271 eliminated

the statutory requirement for configuration of the Board in "sections." The Board was then

afforded the opportunity to consider alternative organizational arrangements that might

function more productively in the new, less restrictive decision-making environment. For

the first time, BVA was allowed to develop a platform for management based on the post

VJRA realities of the Board's mission. After considering various possible organizational

structures, including that of retaining the Board section arrangement, the Board embarked

on a realignment that it believes affords the best prospects for improving overall productivity

and decision timeliness.

.

Among the key considerations in adopting the organizational plan described below were:

creating an atmo"phere in which Board members. staff counsel. and administrative support

personnel could interface directly and regularly, thereby establishing a greater sense of

teamwork; allowing sufficient latitude for different, even competing, managerial styles to

be used by similarly staffed teams; reducing administrative overhead by reducing the number

of identical administrative positions required to support the former 21 Board sections, thereby

allowing the Board to hire additional attorneys without exceeding BVA's FfE limit; reducing

the supervisor to staff ratio; and increasing individual responsibility and accountability.

The Chairman (seated, third from left), Vice Chairman (seated, center), and Senior Deputy Vice

Chairman (seated, third from right) along with the four Deputy Vice Chairmen (seated), the Chief

Counsel and Chief Board Members head the realigned Board.

8
Decision Teams

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

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

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

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

an AL2 level, 15 Board members, and approximately 57 attorneys and 18 administrative

personnel. Each decision team operates as a semi-autonomous entity with considerable

latitude regarding internal operating procedures, such as case assignment practices, and

how Board members, attorneys, and administrative personnel are configured into work units.

Virtually all aspects of the processing of appeals occurs within the confines of the decision

teams. Administrative personnel assigned to each of the four decision teams are essentially

those that comprised four of the five former control divisions, plus two to four additional

administrative FfE. Although these administrative personnel continue to be assigned to the

Administrative Service for performance evaluation purposes, they receive day-to-day

operational guidance from their decision team DVC. Certain mail, file, hearing, and

transcription services continue to be proviJcd by a common, centralized administrative

unit; most other BVA actions (including docketing, hearing scheduling, correspondence

preparation and dispatching) take place within the administrative cadre of each decision

team. Quality Review is performed within the decision teams.

Within each decision team, DVC's have the authority to assign Board members and

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

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

the professional staff by two Chief Board members.

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

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

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

framework within which they do so. Decision teams must abide by all laws and regulations,

and by certain policies and procedures issued by the Board. -

Geographic Alignment

A key element of the B VA realignment is the structuring of the decision teams' workload

along geographical lines. Each decision team is aligned with specific VA regional offices

and is responsible for deciding appeals originating from those offices. However, those

cases that had been remanded to regional offices prior to the realignment are assigned, upon

their return from remand development, to the Board member who signed the remand decision,

regardless of the geographic origin of the appeal. In time, this geographic linkage will

engender a heightened level of continuity and familiarity between the operating units of

BVA and the Veterans Benefits Administration and will provide for better communication

and case control.

Q
Decision Preparation

The basic procedures involved in the preparation of a draft decision for Board member

review and many of the routine tasks involved in the processing of an appeal by the Board

are the same under BV A's realigned configuration as they were prior to realignment. DVCs

are responsible for the management of their decision teams' caseload and procedures for

the assignment of individual appeals to staff counsel for the preparation of written tentative

decisions. Counsel typically prepare draft decisions on individual computer work stations

and submit the completed tentative decisions to Board members within their decision team

for review. Alternatively, counsel dictate draft decisions that are transcribed before being

submitted for a Board member's review. Board members typically will review the record

and revise the submission or return it to counsel for revision. When a decision that is

acceptable to the Board member is fmalized and signed by the member, the decision undergoes

a quality review within the decision team and is then dispatched by its administrative

personnel.

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 case may be

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

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

medical school.

The administrative personnel within each decision team support the teams 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, Penn.sylvania, electronically transmits draft decisions, hearing transcripts, and other

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

Administrative Initiatives

The Board's administrative structure was revamped as part of the organizational

realignment discussed above. This realignment required the existing five administrative

control divisions to be reduced to four, with each of the four new administrative units

becoming an integral part of a decision team. Previously, each control division handled

administrative matters, including case docketing movement and storage, associated

correspondence, and the dispatch of cases for several Board sections, but was not under the

operational control or direction of those sections. The new arrangement has allowed the

Board to combine redundant administrative positions and eliminate others, thereby providing

the opportunity to hire additional attorneys without exceeding the limit on the total number

of Board employees.

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

10
families. These initiatives have included the complete revision of decision analysis and

format (1991); the use of single Board member hearings as opposed to panel hearings (1992);

the introduction of a "trailing" hearing docket (1993); improvements in direct responses to

customers and responses to Congressional and other inquiries (1993); the consolidation of

all BVA employees in the Washington, DC, area in one building (1993); reduction of the

time-consuming restatement of the history of each case contained in the "Introduction"

section of Board decisions (1994); and the implementation of revised docketing procedures,

permitting the placement of cases on the Board's docket as soon as a "substantive appeal"

(VA Form 9) is filed, rather than when an appeal folder is received at the Board (1994).

In 1995, the Board continued the administrative modernization and streamlining of the

past few years. A number of administrative initiatives begun in FY 1994 were also completed

during FY 1995, including:

0 Approximately 6,000 claims folders were received at the Board during the final

quarter of FY 1995. Receipt of claims folders by the Board, other than cases

previously remanded by the Board to regional offices for additional action and

readjudication, had been held in abeyance since Fehruar~' 1994, an action that

provided regional offices access to veterans' records to act on new claims while

appeals of earlier decisions awaited Board review.

Personal hearings, which had been suspended since May 1, 1994, were resumed on

a limited basis in January 1995 at the Board's Washington, DC, office. In March

1995, routine hearing scheduling was resumed. Hearings held at VAROs resumed

in July. Scheduling procedures for personal hearings held at either the Board's

offices in Washington, DC, and at regional offices were revised so that Board hearings

are now held nearer to the time when the associated appeal is decided.

0

0 In July 1995, BV A began a pilot project with the VA Regional Office in St. Petersburg,

Florida, to test the use of video-conferencing to conduct personal hearings. Through

the use of this

interactive video

technology, Board

members can

conduct hearings

from Washington,

DC, while appellants

and their

representatives

present their cases

from their local

regional offices.

Video-conferencing .

affords veterans the The Board is exploring video-conferencing as a means to offer

opportunity to have appellants another personal hearing option.

11
hearings held before Board members without incurring the expense of traveling to

Washington, D.C., and -especially for those in more remote areas -without

having to wait for "travel Board" hearings that might be held only once or twice

each year in their areas due to cost and time constraints. Video-conferencing

conserves the productive capability of the Board member conducting the hearings

by reducing travel time -the Board member will be able to move down the hall,

literally, instead of traveling across the country to conduct a hearing. Authorization

for the Board to conduct video-conferenced hearings was specifically authorized by

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

1994," Pub. L. No. 103-271. Forty-one video-conferenced hearings were conducted

during FY 1995.

Several important initiatives were undertaken in FY 1995 to improve communication

between the Board and appellants. These initiatives include notifying appellants in writing

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

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

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

line; and conducting training on how to deliver outstanding customer service. These customer

service initiatives are discussed in detail on pages 25 -26.

Continuing measures include the prompt dissemination of Court decisions throughout

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

in the attorney staff that prepares draft decisions; the continuation of a formal, comprehensive

training program for staff counsel, discussed on pages 22 -23; and the inclusion of staff

physicians in reviewing requests for independent medical opinions for accuracy and

completeness.

Legislative Initiatives

The legislative movement of FY 1994 continued in FY 1995, as the President signed

legislation that fundamentally changed the way the Board does business and helps ensure

that the Board is able to retain the best and brightest of its members. The Board continues

to examine the effect of the Court's decisions and the need to suggest legislative ch~ges

that will make the appellate process more responsive and friendly to veterans and their

families.

Enacted Legislation

A significant legislative milestone during FY 1995 was the enactment of Pub. L. No.

103-446, the "Veterans' Benefits Improvements Act of 1994," in November 1994. This

law, actively supported by the Board and the Department, contains a number of measures

affecting the Board and incorporates several of the recommendations of FY 1994' s Select

Panel on Productivity Improvement. .

12
Title II of Pub. L. No.1 03-446 restored the practice of pay equity between Board members

and federal Administrative Law Judges (ALJ), ended fixed terms of office for Board members,

and instituted performance standards for members. Until 1990, both ALJs and Board

members were paid at the same level. Beginning in 1991, ALJ pay was increased by about

20 percent. In addition, since passage of the VJRA in 1988, Board members had been

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

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

from July 1993 through July 1994 alone. 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 continue

to serve after 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, permits the Board to "screen" appeals to

determine the adequacy of the record for decision-making purposes or to reman(i the case

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

provide expeditious treatment bv 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 claimsprocessing system, including the Board. The Commission, composed of nine members,

only one of whom is a VA employee, issued a preliminary report in February 1996, and is

scheduled to issue its final report in May 1996.

In October 1995, the Department provided two legislative initiatives to Congress to deal

with the effects on Board procedures of decisions by the Court of Veterans Appeals.

Board Initiative. Providing Copies of Decisions to Claimants and Representatives

The Board prepared and dispatched 28,195 decisions in FY 1995. In more than 85 percent

of those cases, claimants were represented by one of the various veterans' service

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

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

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

representatives of decisions on appeal. For example,

Decisions were and are mailed directly to claimants and to representatives whose

offices are not located at VA facilities.

0

In the cases of representatives who are located at regional offices, the Board would

deliver decisions to a VA contractor who "bundled" mail for the 58 regional offices .

and then delivered that mail to the U.S. Postal Service one or more times per week.

0

13
Upon delivery to the appropriate regional office, that office's internal mail distribution

system would deliver a copy of the decision to the representative.

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

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

service, using a VA contractor.

0

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

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

which routed that decision to a regional office for distribution -even when the representative

was physically located at the regional office -was not acceptable. In Davis v. Brown, 7

Vet.App. 298 (1995), the Court interpreted the words "the Board shall promptly mail" in

section 7104(e) to mean that the Board decision "must be correctly addressed, stamped

with proper postage, and delivered directly by the [Board] into the custody of the U.S.

Postal Service." While both of these decisions are reasonable interpretations of the statute,

this approach creates problems with logistical solutions the Board developed over the yearfi

to deal with notification of parties and their representatives. In addition to adding postage

cost and considerable administrative burden, this process has delayed delivery of decisions

to many representatives, especially in the case of representatives located, quite literally,

within 100 feet of the BVA office sending the decision.

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

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

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

by first-class mail would be expected to reach them.

Board Initiative. Representation by Organizations

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

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

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

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

process -from County Veterans Service Officers, through representatives at regional offices

and hospitals, to VSO staff co-located with the Board of Veterans' Appeals -and in all

regions of the country simply by designating an accredited service organization as their

representative. However, in Leo v. Brown, No. 94-38 (Vet.App. June 16, 1995), the Court

ruled that, where the veteran had listed "The American Legion, Greenville County Veterans

Affairs Office" as his representative, mailing a copy of the Board's decision to the national

office of The American Legion did not satisfy the requirement to mail a copy of its decision

to the appellant's representative. The Leo decision was reissued by the Court in November

1995 (Leo v. Brown, No. 93-844 (Vet.App. Nov. 27, 1995).

In October 1995, the Department submitted to the Congress, legislation which would.

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

as representative. The proposed legislation would authorize the Secretary to treat a power

14
of attorney naming an organization, a specific office of an organization, or a recognized

representative of an organization as an appointment of the entire organization. Claimants

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

recognized as representative.

Claims File Security

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

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

in question recommended that an unusually high percentage of appeals be remanded to VA

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

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

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

claims folders to VA regional offices for further development.

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

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

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

investigations, the U.S. Attorney's Office for the District of Columbia pursued criminal

charges against both attorneys. In January 1995, attorney Lawrence Gottfried was sentenced

to 15 months imprisonment and ordered to pay $39,931 in restitution to the Board, based on

his guilty plea to a felony charge of unlawful concealment, removal, and mutilation of

government records. Gottfried appealed the sentence. However, in June 1995, the Court of

Appeals for the District of Columbia upheld the sentence in a precedential decision.

Subsequently, in September 1995, attorney Jill Rygwalski was sentenced to a prison term of

15 months and ordered to pay restitution in the amount of $22,461, following her guilty

plea to the same offense. Both attorneys are barred from future employment with the Federal

government and both face disbarment proceedings in the jurisdictions in which they are

licensed to practice law.

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

approximately 2,200 decisions handled by the two attorneys since 1988, to identify those in

which tampering may have occurred. During the course ofFY 1995, the Board has notified

almost all appellants whose cases were handled by the two attorneys and informed them of

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

tampering or not, appellants and their representatives are being 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 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 sam~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.

15
16
MEMBERS OF THE BOARD OF VETERANS' APPEALS

New Board members were sworn-in

by Secretary Jesse Brown on

December 12, 1995. Members of the

Board of Veterans' Appeals are the

only federal government employees

at the Administrative Law level that

require Presidential approval.

At the close of FY 1995, the following 58 individuals, 32 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.

MOEHLMANN, HOLLY E.

MONROE, JACQUELINE E.

O'NEILL, EUGENE A.

ORMOND, JOHN E.

PELLETIER, RENEE M.

PHILIPP, ROBERT D.

PHILLIPS, NANCY I.

POWELL, URSULA R.

REDDY, WILLIAM J.

RICE, WARREN W., JR.

ROBIN, NANCY R.

(DEPUTY VICE CHAIRMAN)

RUSSELL, CRAIG P.

SABULSKY, MARY M.

(DEPUTY VICE CHAIRMAN)

SCHULE, JOHN J.

SCHWAR1Z, HOWARD N.

SENYK, GEORGE R.

SHARP, JANE E.

SHERMAN, IRIS S.

SHUFELT, GORDON H.

SPICKLER, DAVID C.

STANDEFER, RICHARD B.

(SENIOR DEPUTY VICE

CHAIRMAN)

SULLIVAN, LAWRENCE M.

SULLIVAN, ROBERT E.

SYMANSKI, CHARLES W.

TOBIAS, CONSTANCE B.

TOBIN, LEO W., III

TUTERA, ALBERT D. .

WARNER, SAMUELW.

WILKINS, STEPHEN L.

AGUAYO-PERELES, JOAQUIN

(DEPUTY VICE CHAIRMAN)

ANDREWS, KENNETHR., JR.

ANTHONY, JAMES R.

BAUER, ROGER K.

(VICE CHAIRMAN)

BLASINGAME, JACK W.

BRAEUER, WAYNE M.

BROWN, DEREK R.

CALLAWAY. BETTINAS.

CHEEK, MICHAEL D.

COHN, STEVENL.

COPELAND, BARBARA B.

CRAGIN, CHARLES L.

(CHAIRMAN)

DANNAHER, THOMAS J.

DAY. JONATHAN E.

DONSBACH, JAN

DURKIN. SHANE A.

FLOWERS, FRANK J.

FRANK, RICHARD B.

GALLAGHER, MARY

GICK, GARY L.

GOUGH, JEROME F.

HOGEBOOM, CHARLES E.

(DEPUTY VICE CHAIRMAN)

HYMAN, BRUCE E.

JORDAN, VICKY L.

KANNEE. BRUCE N.

KELLER, STEVEN L.

KRENZER, EILEEN M.

LYON, MICHAEL D.

MARTIN. JEFFREY J.

17
While the Board has no indication that any other employees tampered with official records,

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

resulted in further delay in an already too lengthy appeal process. The short-term effect on

the Board has been substantial in terms of time and costs expended to investigate and correct

this matter and in terms of the perceived loss of integrity of the Board's appellate procedures.

Long-term effects are still not known. However, the more precise monitoring of appellate

records made possible by the FY 1995 upgrade of the Board's computerized case tracking

system, along with the possible future implementation of document imaging technology,

should reduce or eliminate the likelihood of any recurrence of this problem.

Although this incident is perhaps the most troubling aberration in the Board's 62 year

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

these crimes being discovered and the perpetrators brought to justice.

SELECTION OF BOARD MEMBERS

Although it is not required by law. all members of the Board are attorneys. Since 1994.

no physicians have served as members of the Board. Board members are selected through

a highly competitive process --each must be completely familiar with the ever growing

body of applicable statutory, regulatory, and judicial authority and must acquire a solid

background in numerous areas of subject matter expertise, including medical, necessary to

adjudicate the wide variety of claims within the Board's jurisdiction. With very few

exceptions, Board members have been selected from the ranks of staff counsel to the Board,

because the particular expertise necessary to adjudicate appeals for veterans' benefits in an

expeditious manner is most commonly found in this group. Staff counsel generally require

from 7 to 10 years of experience before they are considered qualified for consideration as a

Board member. The selection process for the limited number of Board member openings is

extremely competitive: Only individuals who have the requisite level of expertise to provide

the efficient, high-quality service that veterans and their dependents deserve are selected.

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

the candidates is never a factor for consideration.

THE EVOLVING ROLE OF THE BVA PHYSICIAN

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

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

role as adjudicators. In the cases of Gilbert v. Derwinski, Colvin v. Derwinski, and Hatlestad

v. Derwinski, the Court held, in essence, that the Board could no longer base its decisions on

its own medical expertise, including that of physicians then serving as Board members. In

Colvin, the Court held that the Board must consider only independent medical evidence to

support its findings rather than provide its own medical judgment as a Board opinion. After

Colvin, the Board utilized BVA physicians as medical advisers, in which capacity they

provided expert medical opinions "on the record" in appeals in which such guidance was

18
required. However, in Austin v. Brown the Court raised serious questions concerning the

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

opinions. Since announcement of Austin, the Board has not utilized opinions from its medical

advisers in adjudicating appeals.

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

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

that, before any use is made of the BVA medical adviser's opinion on remand, the Board

must answer the series of questions posed by the Court in Austin. As a practical matter,

these questions pose a complex procedural hurdle which, absent a change in the law, make

it unlikely that the Board will utilize the opinions of BVA medical advisers in adjudicating

appeals in the future.

The absence of medical members within BVAdecision teams has significantly increased

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

must be able to recognize when the need for an expert medical opinion is warranted to fully

develop a record. Board members must analyze medical evidence with increased frequency

and sophistication and provide a thorough explanation of all medical principles upon which

their decisions rely, with discussion of and citation to independent authority, such as medical

treatises, texts, journals, and epidemiological studies. The resources of the Board's Research

Center have been greatly expanded to help meet this need.

I The Board increasingly has been required to obtain additional medical information

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

Soard continues to seek advisory medical opinions from the Armed Forces Institute of

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

leading medical schools. In FY 1995, the Board requested 379 opinions from independent

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

opinions from VA sources, including the Under Secretary for Health. In addition, the Board

and the Veterans Health Administration (VHA) have entered into an agreement whereby

BVAmay obtain advisory medical

opinion services from VHA and I

physicians who conduct

compensation and pension

physical examinations. From

January through September 1995,

the Board requested

approximately 146 such opinions

from VHA.

As a result of these changes, the

Board now utilizes its remaining

(three full-time and two part-time)

physician staff in other capacities.

BVA staff physicians actively

Formal training is provided to staff counsel on a variety of

topics throughout the year:

19
provide informal advice of a general and educational nature to staff counsel and Board

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

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

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

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

which the evidence is reported and the questions are framed.

REVIEW OF ATTORNEYS' AND AGENTS' FEE AGREEMENTS

The VJRArequired attorneys and agents to file with BVA their fee agreements for services

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

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

agreement.

In FY 1995, the Board received nearly 250 fee agreements for filing. Most of the perceive?

problems concerning fee agreements were handled by correspondence. The Board issued

seven motions for review of fee agreements for insufficiency in FY 1995. At the end of the

fiscal year, four motions were pending. In two instances, the Board issued a decision that

the attorney could not charge a fee. One motion was deferred.

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

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

directl}' by VA under 38 V.S.C. § 5904(d). In FY 1995, eighty-three cases were referred for

such decisions. Eighty-one such cases were completed during the fiscal year: 46 ordered

payment to the attorney, 31 held that the attorney could not be paid, two were returned to the

regional office, one was withdrawn by the parties and one was dismissed.

REPRESENTATION BEFORE THE BOARD

In FY 1995, 87.3 percent of appellants were represented by one of the accredited service

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

not represented. In FY 1994, 87.0 percent were represented by an accredited service

organization, 4.0 percent were represented by an attorney or agent, and 9.0 percent were not

represented. (See table on page 30, Part II.)

LIAISO N ACTIVITIES

Congressional Liaison Activities

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

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

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

20
on Appropriations concerning the backlog of appeals and the Board's initiatives to increase

productivity and improve decision timeliness. One of the key elements of these presentations

was the Board's realignment into "decision teams" to take advantage of the Board's legislative

proposal from last year which permitted decisions by single Board members, Pub. L. No.

103-271.

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

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

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

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

and House of Representatives, both on the Board's budget needs for FY 1996 and the Board's

legislative proposals.

Liaison with Government Study Groups

The Chaiffilan provided an in-depth briefing on the appeal process to the Veterans' Claims

Adjudication Commission, discussed on page 13 of this report. The Board also' provided

the Commission with statistical and historical information. The Commission will issue a

preliminary report in February 1996, and is scheduled to issue its final report in May 1996.

In September 1995, the U.S. General Accounting Office (GAO ) issued a report on veterans'

benefits which concluded that more effective interaction was needed between different

elements within VA in order to address the backlog of appeals awaiting BVA's review. The

GAO report recommended that the department "designate an official to direct efforts to

identify and resolve intra-agency impediments to efficient processing" of appeals. BVA

provided the GAO with statistical and anecdotal information during the course of its

examination.

Liaison with Veterans' Service Organizations

Veterans' service organizations provided representation for 87.3 percent of those filing

appeals with the Board in FY 1995, slightly above the 87.1 percent representation rate of

the past four years. VSOs are vital to the Board's operation and provide an invaluable

service to appellants.

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. The Chairman addressed or participated in 14 conventions and seminars

held by VSOs (both national and state) across the country, including the National Association

of State Directors of Veterans Affairs annual and mid-Winter conferences, the Disabled

American Veterans national convention, and the American Ex-Prisoners of War national

convention. In addition, the Chairman served as the senior Department official at numerous

patriotic ceremonies and observances.

21
Correspondence

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

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

handled by the Office of the Chairman and the decision team administrative units, known as

the Administrative Service prior to the organizational realignment late in FY 1995. The

Chairman also responded to correspondence from numerous claimants and other interested

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

written responses to 3,887 Congressional inquiries in FY 1995, a decrease of more than

one-third the number of inquiries received in FY 1994. Anecdotal evidence suggests that

this decrease is a result of two of the Board's FY 1995 customer service initiatives,

specifically, the practices of informing appellants in writing how long a wait they can expect

before the Board issues its decision in their cases and of providing them the pamphlet,

"Understanding the Appeal Process," which answers many of the most frequently asked

questions about the Board's operation and procedures.

PROFESSIONAL TRAINING

The Board continued to expand its training program during fiscal year 1995, focusing

particular emphasis on attorney staff and Board members. Under the direction of the Vice

Chairman, a committee of key personnel was formed to act as a "Board of Regents" in

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

Development of a well trained and highly motivated professional service

is central to increasing productivity. The purpose of the Board of Veterans'

Appeals' Training Committee is to establish new procedures and refine

existing methods for providing initial and continuing legal, medical,

management, and other education and training for Board members and staff

counsel. Improved education and training of the Board's judicial and attorney

staff will better enable the BVA to accomplish its mission to enter timely,

consistent, and high quality appellate decisions on behalf of the Secretary.

FY 1995 was a year of

tremendous growth for BVA's

professional staff, as the Board

hired 67 new staff counsel.

However, given the complexity

of today's veterans' law

environment, new Board counsel

require intensive training before

they can become fully

contributing team members. .

New staff counsel are provided intensive training in the

complexities and scope of veterans' law.

22
Newly hired attorneys begin their participation in the professional training program on

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

employees' labor union, includes intensive instruction in a variety of functional areas,

including appeals development and adjudication, veterans' law, the hearing process, medical

issues, and computer word-processing techniques. The curriculum includes mentor

assistance, the use of a uniform training guide, legal and medical lectures, and training in

the use of on-line reference resources, discussed in the following section.

The training program provides for professional growth and skill development throughout

the course of an attorney's career with the Board. A nonlinear progression through a wide

variety of class offerings is taken so that attorneys, together with their supervisors, can

evaluate individual educational needs and, based on those evaluations, participate in classes

addressing those areas determined to be most beneficial to each employee. Although much

of the training is provided by Board staff members, additional resources are used to augment

the curriculum, as appropriate. Through the program, the Board seeks to instill in each

employee a customer service outlook and awareness. .

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

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

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

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

Counsel and Veterans Health Administration libraries. Other departmental and governmental

resources are available as well, including those of the Veterans Benefits Administration's

Adjudication Academy, the Office of Personnel Management schools and the National

Judicial College.

Board employees are encouraged to broaden their personal and professional perspectives

through participation in Leadership VA (LVA), an intense leadership training experience

that also affords them the opportunity to gain insight into the myriad of internal and external

forces affecting the department.

AUTO MATI 0 N INITIATIVES

On-Line Research Tools

The Board's comprehensive program of

automation placed a personal computer on the

desktop of every staff counsel, Board member,

and member of the professional and

administrative staff by the end of 1994. A

variety of applications and productivity aids are

now available for all BVA staff. The Board

has also added a significant number of

automated reference materials ("research

.

On-line research tools facilitate legal

research and assist in decision preparation.

23
tools") to its computer network. During FY 1995, in an effort to streamline access to these

automated resources, the Board's Management Information Service (MIS) grouped

these on-line research tools under a single computer screen icon. This material is accessible

through a series of Windows format screens, making it easier and quicker for staff counsel

to conduct sophisticated legal and medical research at their desks by simply clicking on a

series of on-screen "buttons." Training has been provided to familiarize staff counsel and

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

information, and formulation of search "queries."

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

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

on different subjects. The V ADEX (VA Index), for example, is analogous to a card catalogue

and contains references to VA-generated documents that are relevant to the mission of the

Board. Indexes of VA Office of the General Counsel opinions and Chairman's numbered

memoranda are also available.

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

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

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

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

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

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

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

to adjudicators in all 58 VA regional offices. This asset allows staff counsel, Board members,

and others to keep abreast of the burgeoning and dynamic body of veterans' benefits law.

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

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

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

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

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

Regulations (updated montWy); the Physicians' Desk Reference containing pharmaceutical

product descriptions and information about drug interactions and side effects; and the

Merck Manual, a quick reference manual for most common diseases. Also included in the

text files are several VBA Administrative items, including VBA Directives and VBA

Training Guides and Manuals.

Miscellaneous research tools and training materials are prepared and updated by BVA

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

opinions of the U.S. Court of Veterans Appeals; information concerning military awards

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

medical abbreviations. Training materials include the BV A training guide and information

on hearing loss disability, tinnitus, and neurology.

24
All Board decisions issued in calendar years 1992 through 1994 have been 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, is included on the CD-ROM.

This product allows researchers to search all 1992, 1993, and 1994 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

interested in the appeal process. Texts of some decisions issued in 1995 are also available

on-line. Additionally, the text for 1994 Board decisions is available on the Internet through

VA's World-Wide Web Homepage:

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

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

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

and management information system support --was completed in August 1995. YACOLS,

which was first installed at the Board in 1981, was converted from a WANG proprietary

computer system architecture to the more accessible Windows format. VACOLS II, as the

new system is called, was the first complete overhaul of the system since 1988. The graphical

attributes of Windows provide a more user-friendly environment for data entry and retrieval

and on-screen buttons and drop down menus speed data entry by reducing the number of

keystrokes necessary for routine operations. System memory was also expanded to handle

the large number of active appeals and to accommodate the Board's need to maintain extensive

appeal history archives. The greater flexibility and faster reporting of the new system better

positions the Board to add new features and more sophisticated applications to enhance

individual and organizational productivity for the next several years.

CUSTOMER SERVICE

The Board continued its active

participation in the Department's effort to

improve the quality of service to customers.

Following up on the publication of customer

service standards at the close of FY 1994,

the Board now notifies appellants by letter

when their appeals are docketed. This letter,

written in clear, non-technical language

provides appellants with an estimate of how

long it is likely to take before their cases will

be reviewed and decided. The Board also

informs appellants when certain significant

developments occur in the processing of The easy to read pamphlet, "Underst~nding the

their appeals, such as a request for an Appeal Process," is provided to all appellants and

independent medical opinion. to veterans' service organizations.

25
Another major customer service improvement begun in FY 1995 was the publication

and distribution of a 40-page pamphlet that explains the claims appeal process in detailed,

yet easy to understand language. In addition to describing the steps involved in the filing

and processing of an appeal, the pamphlet provides suggestions on things appellants can do

to avoid delays and to make their appeal as complete as possible. It also provides an

explanation of additional appellant rights and a phone number, established in FY 1995

exclusively for this purpose, that appellants can call to learn the current status of their appeals.

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

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

latter has also been distributed to all VA regional offices and medical centers, VSO

headquarters, and has been made available to state and local veterans departments.

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

likely contributed to the 34 percent decrease in appellant inquiries submitted to the Board

by Congressional offices in FY 1995, compared with the previous year. .

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

and professionalism 100 percent of the time has been continuously emphasized throughout

all facets of the Board's operations. This standard has been adopted, not just as the norm,

but as the only acceptable way to do business. Secretary Brown presented Certificates of

Appreciation to four Board employees during FY 1995 for providing outstanding customer

service.

Several factors, including the transition to the Board's current case management and

tracking computer system, VACOLS ll, resulted in the postponement until FY 1996 of

BVA's second customer satisfaction survey, originally planned for FY 1995. A potentially

serendipitous result of this delay may be the opportunity to survey more recent appellants,

those who filed appeals since the introduction of the Board's various customer service

initiatives. This should afford the opportunity to assess, from the appellants' viewpoint, the

impact of those initiatives, and to obtain insights into additional improvements needed.

WORLD WAR II 50th ANNIVERSARY COMMEMORATIONS

The Board continued its active participation in the United States 50th Anniversary of

World War II Commemoration Program. The Board was designated as an official World

War II Commemorative Organization in 1994 in recognition of BVA's program honoring

and thanking America's World War II veterans and its efforts to increase Board employees'

understanding of the sacrifices and accomplishments of those veterans. Eighteen Board

employees volunteered their time to plan and conduct the commemorative activities.

In October 1994, on behalf of all BVA employees, the Chairman placed a wreath at tht;:

Tomb of the Unknowns at Arlington National Cemetery in honor of the more than 400,000

Americans who died in service during World War II. The United States Army and Army

26
World War II veterans were saluted during the Annual BV A Dinner Dance in October. World

War II Honorable Service Lapel Pins, known to WW II veterans as "the Ruptured Duck,"

were presented to World War II veterans attending the event, including several Board

employees.

In November 1994, BVAemployees visited World War n and other veterans at the VAMC

Nursing Center in Washington, DC. The employees presented "We Care Packages" to

dozens of nursing home residents to personally thank WW n veterans for their service and

to put the commemorative program's motto, "A Grateful Nation Remembers," into action.

Throughout the entire year, "This Week in World War n" bulletins were displayed on

each floor of the Board's Washington, DC, offices. The display provided a week-by-week

chronicle of the campaigns, battles, and home front activities of the war and maintained a

continuous awareness of the magnitude and intensity of America's involvement in the war

and the debt of gratitude owed to America's World War n veterans.

"This Week in World War [[" bulletins helped maintain Board employees' awareness of the

contributions and sacrifices of America's World War II veterans.

27
PART II

FY 1995 STATISTICAL DATA

During FY 1995 BVA produced a total of 28,195 decisions. This represents a 27.9

percent increase over FY 1994, when 22,045 appellate decisions were produced. The increase is primarily a result of a legislative change in the latter part of FY 1994 that authorized decisions to be made by individual Board members rather than by three-member panels. Numerous administrative changes in FY 1995 also contributed to increased BVA productivity. A breakdown of the disposition of the Board's decisions by category of appeal is

provided below.

Category Total Allowed Remanded Denied Other

23,566

1,268

360

36

1,444

201

573

295

134

47

271

4,759

162

58

2

159

7

114

89

61

7

73

11,323

750

149

8

560

83

296

101

49

11

72

2,368

67

46

5,116

289

107

25

384

103

141

97

18

26

101

8

22

8

6

3

25

Disability compensation

Disability pension

Medical

Insurance

Death

Training

Waivers

Loan guaranty

Reconsiderations

Character of discharge

Miscellaneous

Totals 28,195 5,491 13,402 6,407

Auuellate Processine Cateeories FY 1994

(days)

FY 1995

(days)

Notice of Disagreement to Statement of the Case 70 65

Statement of the Case to Substantive Appeal 59 62

Substantive Appeal to the BVA 244 252

Processing Time through the BVA 359 507

Average Remand Time Factor 107 92

.

Total Processing Time All Categories 839 978

29
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FY Decisions Allowed Remanded Denied Other

1993 26,400 16.9% 44.0 % 36.9 % 2.2%

1994 22,045 17.5 % 48.3 % 28.1% 6.1%

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

Estimated

FY 1993 FY 1994 FY 1995 FY 1996*

32,250

38,000

64,7431

675

477

67.6

$939

500

2,450

40

26,400

38,147

33,728

466

441

59.9

$1,046

1,172

3,533

0

22,045

35,465

47,1481

781

442

49.9

$1,127

6892

1,9962

0

28,195

39,990

58,9431

763

433

65.1

$1,030

1542

5532

0

Decisions

Appeals Received

Appeals Pending

Response Time

FfE

Decisions per FfE

Cost per Decision

Hearings -VACO

Hearings-Field

Hearings -Video

1 Pending figures for FY 1994, FY 1995, and FY 1996 include appeals pending in the field but

certified as ready for Board review.

2 Hearings were suspended for part of FY 1994 and FY 1995 in order to allow hearings to be

conducted at a time proximate to when an appeal was actually considered by the Board.

* Estimate reduced as a result of lost work days resulting from government shutdowns in

November 1995 and January 1996. Original estimates are indicated within parentheses.

31

(35,200)

(38,000)

(61,743)

(640)

(477)

( 73.8)

($939)

(500)

(2,450)

(40)
781

675*

.~40

BOD

700

fioo

SOD

400

300

4

200

FY 92 FY 93

* Estimated

** Pre-shutdown estimate

FY 94 FY 95 FY 96*

Response time is defined as the number of days it would take BVA to render decisions

on all pending certified appeals at the processing rate of the immediately preceding oneyear time frame.

40000

35000

30000

25000

20000

15000

8888

5000

0

FY 92 FY 93 FY 94 FY 95 FY 96*

**

* Estimated

** Pre-shutdown estimate

32
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Decisions Per FTE, FY

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FY 1992 FY 1993 FY 1994 FY 1995 FY 1996*

* Estimated

34
PART III

ADDITIONAL INFORMATION PROVillED PURSUANT

TO STATUTORY REQUIREMENTS

I. 38 V.S.C. § 7101(d)(2)

In February 1994, in response to the growing backlog of appeals and resulting growth of

case folders stored at B VA awaiting review, the Department modified the practice of shipping

folders to the Board as soon as cases were certified in the field as being ready for B VA

review. At the initiation of the Board and the Veterans Benefits Administration, VA instituted

the practice of adding appeals to BVA's docket upon receipt of Substantive Appeals (VA

Form 9) by the Board, while retaining associated case folders at regional offices until a time

proximate to when the Board would begin its active review of the cases. This "advance

docketing" system allows appellants access to their case folders for the filing of new claims

or other actions not under the Board's purview, while ensuring timely placement on the

Board's docket.

The following estimates of new Notices of Disagreements received in the field are

provided to BVA by the Veterans Benefit Administration. Many of the cases for which a

Notice of Disagreement is filed are resolved at the regional offices and, therefore, never

reach the Board.

Estimated Number of New

Notices of Disagreement

Received in the Field

~

5,073

5,461

4,766

5,158

4,969

6,419

5,639

5,182

5.954

5,382

6,329

~

FY94

4,673

5,098

5,167

5,065

4,754

6,113

4,670

5,229

4,703

4,484

6,291

~

FY93

5,386

5,416

5,421

4,567

4,557

6,457

5,715

5,573

5,635

5,305

6,109

~

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 66,104 61,813 65,676

35
Prior to the procedural change described on the preceding page, the number of case

folders physically received at the Board approximated the number of appeals filed during

any given time frame, as the folders were transferred to the Board upon their certification as

being ready for BV A's review. Since February 1994, the number of folders received at the

Board no longer corresponds with the number of appeals filed. Rather, the number of

appeals filed is indicated by the number of appeals certified in the field as being ready for

B VA review, plus those cases returned to B VA for review subsequento remand development.

The "Cases Filed" table, below, is a hybrid resulting from the procedural change just

described, which occurred in February 1994, at about the midpoint of the 36 month report

period. For all ofFY 1993 and for October through January ofFY 1994, the figures indicate

the number of case folders physically received at the Board. From February of FY 1994

through the end ofFY 1995, the figures indicate those appeals certified as ready for BVA

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

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

remand development. The number of Substantive Appeals (VA Form 9) received by the

Board in FY 1995 is also shown. Many appeals for which a VA Form 9 is received at the

Board are resolved in the field, and therefore withdrawn, without reaching BVA.

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

Number of cases appealed to BVA during FY 1995: 39,990

Number of cases pending before BVA at the start ofFY 1995: 47,148

Number of cases pending before BVA at the end ofFY 1995: 58,943

Number of cases filed during each of the 36 months preceding FY 1996:

Substantive Appeals (VA Form 9)

Cases Filed Received at BVA

FY95

2,301

3,302

2,446

2,861

3,445

4,605

3,027

3,958

3,660

3,523

3,229

.3...Q.3..,1

FY94

2,457

3,114

3,010

2,393

1,960

5,629

3,365

1,933

2,305

3,143

3,125

3.031

FY93

3,360

2,951

2,956

2,720

3,074

3,766

2,927

2,766

3,090

3,064

3,882

.3...,5:.21

38,147

FY95

6,219

4,118

3,088

2,653

2,973

3.092

2,896

3,191

3,229

2,794

3,122

~

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 39,990 35,465 40,580

36
(D) Average length of time a case was before the BVA between the time of the filing

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

Responsible

Part~

Average Elapsed

Processing Time Time Interval

Notice of Disagreement Receipt Field Station

to Statement of the Case Issuance

65 days

Statement of the Case Issuance

to Substantive Appeal Receipt

Appellant 62 days

Substantive Appeal Receipt to Field Station

Certification of Appeal to BVA

252 days

Receipt of Certified Appeal to

Issuance of BVA Decision

BVA 507 days

Average Remand Time Factor Field Station 92 days

(E) Number of members of the Board at the end ofFY 1995: 58 members

Number of professional, administrative, clerical,

stenographic, and other personnel employed by the Board

at the end ofFY 1995:

TOTAL:

455 employees

433.2 FfE

(F) Number of acting members of the Board during FY 1995:

Number of cases in which each such member

participated:

2

2 cases

II. 38 V.S.C. § 7101(d)(3)

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

required by 38 V.S.C. § 7101(d)(3):

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

Fiscal year 1996: 38,000

Fiscal year 1997: 38,000

(B) Evaluation of the ability of the Board (based on existing and projected personnel

levels) to ensure timely disposition of such appeals as required by 38 U.S.C. § 7101(a):

.

(1) Background on BV A Timeliness Projections. The indicator used by the B VA

to forecast its future timeliness of service delivery is BVA "response time" on appeals. By

37
taking into account the Board's most recent appeals processing rate and the number of

appeals that are currently pending before the Board, BVAresponse time projects the average

time that will be required to render decisions on that same group of pending appeals. For

response time computation purposes, the term "appeals pending before the Board" includes

appeals that have been certified for B VA review but are being held in the field pending B VA

action. BVAresponse time is computed by first determining the BVA's average daily appeals

processing rate for a recent given time period. This is determined by dividing the number of

appeals decided by the calendar day time period over which those appeals were dispatched.

B VA response time is then computed by dividing the number of appeals pending before the

Board by the average daily appeals processing rate. As an example, B VA response time for

FY 1996 is computed as follows:

Estimated 35,200 Decisions in FY 1996 + 365 Days = 96.44 Decisions per Day

61,743 Appeals Pending before the BVA (end ofFY 1996) + 96.44 Decisions per

Day = 640 Day Response Time on Appeals .

(2) Res~onse Time Projections: Based upon existing and projected levels of

resources, the estimate of BVA response time, as given in the Board's budget submission

for FY 1997, was originally 640 days for FY 1996 and 519 days for FY 1997. B VA's

current estimate of response time, revised as a result of the government shutdowns in

November 1995 and January 1996, is 675 days for FY 1996. These response time projections

are contingent upon BVA's original appeal receipts estimates for FY 1996 and FY 1997

shown in paragraph II(A), above.

ESTIMATES OF }"'UTURE TIMELINESS AND PRODUCTIVITY

The Board anticipates that the precedent decisions of the United States Court of Veterans

Appeals will continue to impose additional requirements for case analysis and development.

Because decisions of the Court are effective immediately upon issuance, precedential

decisions may require that the Board re-adjudicate a large number of cases already

adjudicated, but not yet dispatched from the Board. Compared to FY 1995, when personal

hearings were suspended for the first quarter of the year and held only on a limited basis

from January through July, the amount of time Board members spend deliberating cases

will, necessarily, be reduced as a result of holding personal hearings throughout the entirety

ofFY 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 1994. The remand rate in FY 1995

was 47.5 percent. The majority of these cases will eventually be returned to the Board for

adjudication, but the Board cannot anticipate when the requested development will ~

completed. The estimates also do not include the additional cases returned annually to the

Board by the Court of Veterans Appeals for readjudication.

38
It is anticipated that these trends of the past fiscal year will continue: (1) the directives of

the Court will continue to require the Board to expend additional time, effort, and resources

in producing appellate decisions; (2) the holding of personal hearings throughout the year

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 VA 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.

Single Board member decision authority and other administrative and legislative initiatives

had a positive effect on BVA decision productivity and average response time in FY 1995.

While it is anticipated that the organizational realignment of the Board in late FY 1995 will

further those gains, factors such as those discussed in the preceding paragraph could lessen

the 10 to 25 percent improvement the realignment should otherwise allow. It is, unlikely,

however, that the average response time realized prior to judicial review will be regained.

39