DEPARTMENT OF VETERANS AFFAIRS

Chairman, Board of Veterans' Appeals

Washington DC 20420

December30,1998

The Honorable Togo West

The Secretary of Veterans Affairs

Department of Veterans Affairs

810 Vermont Avenue, N.W.

Washington, DC 20420

Dear Mr. Secretary:

I respectfully present the fiscal year 1998 Report of the Chairman,

Board of Veterans' Appeals, for inclusion in your fiscal year 2000 budget

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

activities during fiscal year 1998 and projected activities for fiscal year 1999,

as required by 38 U.S.C. § 7101(d)(1). Part III contains the information

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

As this report demonstrates, the Board sustained the productivity and

efficiency gains it has made in recent years and significantly improved its

decision-making timeliness during fiscal year 1998. I am confident that

the strengthened cooperation between the Board, the Veterans Health

Administration, and the Veterans Benefits Administration that was

demonstrated during fiscal year 1998, together with the Board's

establishment of a more exacting quality review process and other

initiatives discussed in this report, will result in further improvements in

fiscal year 1999.

Very respectfully,

f ';? L~1z,..~::

E. D. Clark

Enclosure
TABLE OF CONTENTS

PART I. THE BOARD OF VETERANS' APPEALS

HISTORICAL OVERVIEW 1

SINCE JUDICIAL REVIEW 3

HISTORICAL ORGANIZATION OF THE BOARD 8

CURRENT ORGANIZATION OF THE BOARD 9

ORGANIZATIONAL DIAGRAM 10

ADMINISTRATIVE ACTIVITIES 13

ACCESS AND OUlREACH 18

LEGISLATION 18

MEMBERS OF THE BOARD OF VETERANS' APPEALS 20

SELECnON OF BOARD MEMBERS 21

MEDICAL ISSUES 21

ATTORNEY AND AGENT FEE AGREEMENTS 23

REPRESENTATION BEFORE THE BOARD 24

LIAISON ACTIVITIES 24

QUALITY 25

PROFESSIONAL TRAINING 26

RESEARCH MATERIALS 27

EPILOGUE 29

PART II. FY 1998 STATISTICAL DATA

TABLES AND GRAPHS 31

PART III. ADDITIONAL INFORMATION PROVIDED PURSUANT TO

STATUTORY REQUIREMENTS

I. 38 U.S.C. § 7101(c)(2) 37

II. 38 U.S.C. § 7.101(d)(2) 37

III. 38 U.S.C. § 7101(d)(3) 40

ESTIMATES OF FUTURE TIMELINESS AND PRODUCTIVITY 41

III
PART I

THE BOARD OF VETERANS' APPEALS

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

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

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

that are presented annually for appellate review. BVA's mission, as set forth in 38 U.S.C.

§ 7101 ( a), is "to conduct hearings and dispose of appeals properly before the Board in a

timely manner" and to issue quality decisions in compliance with the requirements of

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

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 fmal decision on appeal for the

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

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

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

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

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

which eventually were codified as regulations.

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

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

workload was greatly increased in the aftermath of World War II. In 1949, the Board

rendered almost 70,000 decisions. These decisions generally were simple, short, and

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

operational programs to achieve more efficient case management.

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

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

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

was inconsistent with the Board's primary function as an independent, 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 a 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 Code of Federal Regulations in 1964. Currently, the

Board's Appeals Regulations and Rules of Practice are contained in Parts 19 and 20,

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

The 1970s and 1980s were characterized by a significant increase in the number of

appeals, due in large part to appeals filed by veterans of the Vietnam War. In 1977, the

number of new appeals exceeded 60,000. In 1982, 68,000 new appeals were filed. The

average appellate processing time, measured from the date of filing of the notice of

disagreement 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

2
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.

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

60,000s from the late 1970s through FY 1998. However, as discussed in this report,

BVA's response time and decisional productivity have undergone dramatic changes in

the 1990s.

SINCE JUDICIAL REVIEW

1988 THROUGH 1998

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 Department's benefit claim adjudication system

since the inception of the Board in 1933. Decisions by the Court have had a profound

effect on the Department's entire adjudication system, frequently forcing the Board to

adapt to new interpretations of veterans' law and to establish new procedures to meet

the continually evolving requirements of the law. Few, if any, decisions of the Court

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

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

detailed decisions.

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

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

requirements for adjudication." Locher v. Brown, 9 Vet. App. 535 (1996) (citing Stillwell

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

The body of vetera"s'

common law developed

since judicial review

began now fills ten

bound volumes.

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

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

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

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

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

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

they were prior to judicial review.

Additional factors that accompanied or followed the introduction of judicial review

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

VA claims adjudication system, including:

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

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

VA benefits;

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

of important decisions;

the need for preparation and procurement of a large number of medical opinions

from sources outside of the Board, as well as time spent by the Board and its

staff conducting medical research through the use of relevant medical textbooks

and treatises;

,!". an increased volume of requests for formal hearings before the Board in

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

and the concomitant increase in travel time for Board Members;

A the added responsibility of attorney fee agreement processing and review;

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

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

following prior Court and Board remands.

In FY 1998, there were 65,373 notices of disagreement filed, a slight decrease from

the 66,566 that were filed in FY 1997. The total number of cases appealed in FY 1998

was 71,885. This number includes cases added to the Board's docket during the fiscal

year, as well as case folders that were physically received at the Board, including original

receipts, cases remanded to the Board by the Court, and appeals returned to the Board

after remand development by regional offices.

4
Prior to FY 1992, BVA response time -the number of days it would take BVA to

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

preceding one-year time frame -rarely exceeded 150 days. However, as the impact of

Court decisions began to take effect, BVA's response time climbed steadily from 139

days in FY 1991 to a peak of781 days at the end ofFY 1994. By the end ofFY 1998,

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

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

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

such hearings. By FY 1994, the increase in BVA response time had resulted in an

unacceptably long period between the time when a hearing was held and the time when

the Board actively reviewed the associated case, which often rendered information

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

began its review. Travel hearings proved to be a double-edged sword: Appellants

benefited from the convenience and cost savings from hearings held closer to their homes,

but the increased amount of time Board members spent traveling to and from hearings

reduced the amount of time available for them to decide cases.

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

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

approval to employ emerging video technology to conduct this form of hearing. As a

result, authority to conduct videoconferenced hearings was authorized by the "Board of

Veterans' Appeals Administrative Procedures Improvement Act of 1994," Pub. L. No.

103-271. BVAbeganconductingvideoconferencedhearings inFY 1995 and has steadily

expanded their use each year since then, conducting 1,151 videoconferenced hearings in

FY 1998. Videoconferencing is discussed in more detail on pages 14 through 16.

During FY 1998, Board

members conducted

nearly 5,000 personal

hearings held at V A field

offices, at the Board s

offices in Washington,

DC, and by videoconference. Most

appellants designate an

appeals representative to

assist them with the

preparation and

presentation of their

cases before the Board.

5
The VJRA removed a historic $10 limitation on the fees that may be charged by

attorneys-at-law and claims agents who represent VA claimants, and gave the Board

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

has not yet shown significant interest in the practice of veterans' law, representing only

4.2 percent of appellants whose appeals were decided by the Board in FY 1998 and 3.2

percent the previous year.

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

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

This sometimes requires the Board to stop the flow of cases, identify cases affected by a

Court decision, and readjudicate them.

The Court has ruled that the Board must consider every potentially applicable

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

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

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

assist" under 38 V.S.C. § 5107(a) does not apply, VA is required by 38 V.S.C. § 5103(a)

to notify the claimant, in certain circumstances, of the evidence necessary to complete

an incomplete application for benefits.

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

of binding decisions issued by that or another court subsequento the Board's original

decision on appeal. A recent significant example is the decision of the United States

Court of Appeals for the Federal Circuit in Hodge v. West, No. 98-7017 (Fed. Cir. Sept.

16, 1998). In that decision, the Federal Circuit overruled the legal test adopted by the

Court of Veterans Appeals in Colvin v. Derwinski, 1 Vet.App. 171 (1991), for purposes

of determining whether "new and material" evidence has been submitted to reopen a

previously and fmally denied claim. Subsequent to Hodge, the Court of Veterans Appeals

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

in Hodge and in 38 C.F.R. § 3.156(a), almost every case coming before the Court on

appeal involving this issue.

Similarly, the Board's own remand rate has been about twice that experienced before

judicial review began. Among the Board's reasons for remanding cases are the need for

specific medical information, the need to obtain appellants' private medical records, and

the need for additional due process development, such as the holding of a requested

hearing or the de novo consideration by regional office personnel of additional issues

identified as having potential applicability, as previously discussed. Other cases must

be remanded because of Court decisions issued between the time a VA field adjudication

is made and the time it comes before the Board on appeal.

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

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

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

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

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

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

order in that case:

The protracted circumstances of this case and others which

have come all too frequently before this Court demonstrate the

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

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

law, the right to compliance with the remand orders. We hold further

that a remand by this Court or the Board imposes upon the Secretary

of Veterans Affairs a concomitant duty to ensure compliance with

the terms of the remand, either personally or as [] "the head of the

Department." 38 U.S.C. § 303. It matters not that the agencies of

original jurisdiction as well as those agencies of the VA responsible

for evaluations, examinations, and medical opinions are not under

the Board as part of a vertical chain of command which would

subject them to the direct mandates of the Board. It is the Secr~tary

who is responsible for the "proper execution and administration of

all laws administered by the Department and for the control,

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

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

may appeal an initial denial as a matter of right (38 V.S.C.

§ 7104( a)), and a party, represented by the General Counsel, to

every appeal before this Court (38 V.S.C. § 7263(a)). Finally, we

hold also that where, as here, the remand orders of the Board or

this Court are not complied with, the Board itself errs in failing to

insure compliance. While it is true that where an appellant has not

been harmed by an error in a Board determination, the error is not

prejudicial (see 38 V.S.C. § 7261(b) ("Court shall take due account

of the rule of prejudicial error")[)], the Court cannot say, based on

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

The Court takes this opportunity to remind the Secretary that the

holdings of this decision are precedent to be followed in all cases

presently in remand status.

'7
In addition to Hodge and Stegall, other Court rulings also have affected the way in

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

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

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

testimony.

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

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

enhanced productivity. Also in FY 1994, the Board implemented revised docketing

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

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

change eliminated the disadvantage previously experienced by appellants who requested

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

therefore, were not docketed until after the hearing was held. The Board's docketing

procedures were improved further during FY 1997 and FY 1998 as a result of a joint

effort by BVA and the Veterans Benefits Administration (VBA) to adopt a single

computerized system for the docketing, tracking, and managing of appeals. This effort

is discussed in more detail on page 14.

HISTORICAL ORGANIZATION OF THE BOARD

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

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

who is "directly responsible to the Secretary," as provided by 38 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 a six year tenn at the Assistant Secretary level. 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 10.)

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

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

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

eliminated in November 1994 by the "Veterans' Benefits Improvements Act of 1994,"

Pub. L. No.1 03-446. This legislation also restored comparability between Board member

pay and that of Administrative Law Judges. Board members are the only federal

employees at this level who require Presidential approval for appointment.

8
Since the enactment of Pub. L.

No. 103-271, which was signed into

law on July I, 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 threemember panel requirement, the

Board was divided into 21 decisionmaking units (Board sections), each

generally composed of three Attorneys skilled in veterans' law carefully consider

attorney Board members one of appellants' records and prepare draft decisions for

whom was designated Chief and review and approval by Board members.

bore the supervisory responsibility for the section. Eight or nine staff counsel, attorneys

graded from GS-9 through GS-14, were assigned to each Board section. A separate

administrative support operation provided clerical and other administrative assistance

services to the Board sections.

The organizational structure of the Board underwent relatively few major changes

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

the Professional, and the Administrative Services. F-unct-ional responsibilities and

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

and the organizational structure reflected the prevailing management philosophies of

the era. The "Board section" arrangement also reflected the legal requirement that

decisions be issued by panels, usually -c<ms-isting of three members. BVA remained a

highly centralized organization with relatively little delegated authority other than the

authority of Board members to decide appeals.

CURRENT ORGANIZATION OF THE BOARD

The single member decision-making authority granted by Pub. L. No. 103-271

eliminated the statutory requirement for configuring the Board in "sections." The new,

less restrictive decision-making environment provided BVA the opportunity to develop

a more efficient management structure -one that afforded the best prospects for

improving overall productivity and decision timeliness.

9
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Near the end ofFY 1995, the Board installed an organizational alignment that created

an atmosphere in which Board members, staff counsel, and administrative support

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

teamwork. The new organizational structure reduced administrative overhead and allowed

sufficient latitude for different, even competing, managerial styles to be used by similarly

staffed teams. By reducing the number of identical administrative positions required to

support the former 21 Board sections and reducing the supervisor-to-staff ratio, the Board

was able to hire and place additional attorneys in decision production positions without

exceeding its FTE limit. At the heart of the realigned Board were four "decision teams."

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

the Board. Each team contains the staff counsel and Board members who review and

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

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

at an AL2 level, 15 Board members (two of whom are designated as Chief members),

approximately 60 to 70 attorneys, and 18 administrative personnel who, although under

the operational direction of the Board's Administrative Service, provide direct support

to the decision teams. Each decision team operates as a semiautonomous entity with

considerable latitude regarding internal operating procedures, such as case assignment

practices and the way in which Board members, attorneys, and administrative personnel

are configured into work units.

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

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

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

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

all required case tracking, associated correspondence, and other administrative case

handling support. This arrangement made possible a reduction in the number of required

administrative positions and a commensurate increase in the number and relative

proportion of attorney positions, compared with the Board's pre-decision team structure.

BVA's administrative personnel perform the essential functions of case management

and tracking, docket control, scheduling of hearings, correspondence preparation and

dispatching, secretarial, and transcription services. They also conduct critical liaison

activities with veterans, veterans' service organizations (VSO), Members of Congress

and their staffs, and other interested parties. The Board's transcription unit, located in

Wilkes-Barre, Pennsylvania, transcribes and electronically transmits to the Board's offices

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

products. The unit also maintains a Veterans Information Office to answer general

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

status information"to appellants and other inquirers.

11
Within each decision team, managers have the authority to assign Board members,

attorneys, and administrative personnel into whatever decision-making configurations

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

professional staff by two Chief Board members.

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

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

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

form the framework within which they do so. Decision teams must abide by all laws and

regulations, and by certain policies and procedures issued by the Board. A centralized

quality review process, discussed on page 25, insures consistent adherence to Boardwide criteria in six areas deemed essential to quality decisions.

A key element of BVA's current organizational structure is the alignment of the

decision teams' workload along geographical lines. Each decision team is aligned with

specific VA regional offices and is responsible for deciding appeals originating from

those offices. However, cases remanded to regional offices prior to the realignment are

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

the remand decision, regardless of the geographic origin of the appeal. This geographic

linkage has engendered a heightened level of continuity and familiarity between the

operating units of BVA and the Veterans Benefits Administration, and has resulted in

better communication and case control. Efforts to improve direct communication between

Board members and adjudicators in the field is discussed on pages 15 and 16.

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

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

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

their decision teams' caseload and for procedures for the assignment of individual appeals

to staff counsel for the preparation of written tentative decisions. Counsel typically

prepare draft decisions on individual computer work stations and submit completed

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

members review the record and, when necessary, revise the submission or return it to

counsel for revision. When a decision is acceptable to the Board member, it is signed by

the member, undergoes a final quality review, and is mailed to the appellant. A copy of

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

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

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

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

12
the Under Secretary for Health, before rendering decisions in cases involving complex

or unusual medical issues. These advisory medical opinions are discussed in detail on

page 23.

ADMINISTRATIVE ACTIVITIES

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

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

and their families. Among the initiatives undertaken prior to FY 1998 were:

1993

1994

1995

1997

complete revision of decision analysis and format

use of single Board member hearings as opposed to panel hearings

introduction of a "trailing" hearing docket

improvements in direct responses to customers and responses to

Congressional and other inquiries

consolidation of all Washington, DC, employees in one building

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

case contained in the "Introduction" section of Board decisions

implementation of revised docketing procedures, permitting the

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

appeal" (VA Form 9) is filed, rather than when an appeal folder is

received at the Board

introduction of videoconferencing for the conduct of personal hearings

numerous customer service initiatives, including publication of a plain

language pamphlet entitled, "Understanding the Appeal Process"

made BVA decisions and, "Understanding the Appeal

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

adopted a single appeals tracking system for use by BVA and the

Veterans Benefits Administration

In 1998, the Board introduced a revised VA F onn 9, "Appeal to the Board of Veterans'

Appeals." This fonD, the filing of which causes an appeal to be entered on the Board's

docket and which appellants use to provide infonnation essential to the processing of

their appeals, is now much simpler for appellants to understand than the previous version.

13
Significant enhancements were made during FY 1998 to the Veterans' Appeals

Control and Locator System (VACOLS), which was developedjointly by the Board and

VBA and first adopted as the Department's appeals tracking system in FY 1997. This

unified tracking system provides important Department-wide benefits, including:

Improved accuracy and timeliness of Departmental reports and appeal

status determinations;

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

Reduced administrative overhead and operating costs associated with

appeals for both VBA and BVA;

Improved appeals-related workload management and planning information.

The functional enhancements made to VACOLS during FY 1998 allow VBA

personnel to add appeals to BVA's docket, close out appeals resolved in the field, indicate

appellants' requests for BV A hearings, indicate when cases have been developed enough

to permit the holding ofBVAhearings, and view or download Board decisions and other

documents attached to VACOLS records. The capability to view or download decisions

and other VACOLS attachments has also been provided to the office of the Secretary,

VA Congressional Liaison offices, and the Office of General Counsel. Additionally,

veterans' service organization representatives connected to BVA's computer network

have been provided a version of VACOLS that

meets their representational needs.

As previously mentioned, the Board

conducted its first videoconferenced hearing in

FY 1995. Every year since then, BVA has

expanded its use of video technology, for both its

personal hearing application and its use as a

medium for the conduct of training and

information exchanges between BVA and VA

regional offices. A significant milestone was

V ACOLS, the Veterans' Appeals Control and Locator

System, provides essential case management and tracking

information to users throughout the Department s appeals

adjudication system. VACOLS also provides up-to-date

case status information to VSO representatives and other

V A offices.

14
reached in September 1998, with the signing of a Memorandum of Understanding (MOU)

between the Board and the Veterans Benefit Administration that articulated the

commitment of both organizations to employing videoconferencing technology to

improve service delivery and communications by, among other things:

Establishing a nationwide video teleconferencing network to

support the facilitation of appellant hearings and communication

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

communication between VBA field offices;

Developing joint equipment procurement and installation plans;

Maximizing system utilization through cooperative scheduling and

equipment compatibility;

Ensuring that the usage of videoconferencing systems is an integral

part of organizational long-term planning.

During FY 1998, videoconferencing equipment was installed at five regional offices,

bringing to 20 the total number of offices with which these hearings can routinely be

held. A third videoconferencing hearing room was also installed at the Board during FY

1998. BVA conducted 1,151 videoconferenced hearings during FY 1998, a four-fold

increase over the 233 videoconferenced hearings held the previous year, and expects to

conduct at least 1,200 of these hearings during FY 1999.

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

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

from their local regional offices. Videoconferencing affords veterans the opportunity to

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

Washington, DC, and, especially for those in more remote areas, without having to wait

for "travel Board" hearings that -due to cost and time constraints -might be held only

once or twice each year in their areas. Videoconferencing has also proven to be a very

effective way to conserve the productive capability of Board members by reducing their

travel time. With videoconferencing, Board members are able to move down the hall,

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

Videoconferencing is employed regularly as a vehicle for improving direct

communications between Board members and regional office adjudication personnel.

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

15
Videoconferenced

hearings save time and

expense for appellants

and reduce travel time for

Board members. The

Board and the Veterans

Benefits Administration

also use videoconferencing as an

effective way to conduct

training and information

exchanges.

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

assist" requirements, determining secondary service connection, and evaluating the

adequacy of medical examinations for claim adjudication purposes, among others.

Anecdotal feedback regarding these sessions has been overwhelmingly positive. This

type of regularly occurring training and two-way communication provides a real-time

alternative to the more typical classroom training environment, allowing "face to face"

information exchanges without the cost or, more importantly, the time required for travel

to and from geographically distant locations.

BVA's effective use of videoconferencing technology was acknowledged during

FY 1998 by the General Services Administration, which presented Achievement Awards

to four Board employees for their "outstanding achievement implementing cost effective use of video teleconferencing to conduct nationwide long distance appellate hearings and training for the Board-of Veterans' Appeals."

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

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

callup" procedure. Under the callup arrangement, which had been in effect since February

1994 as a result of the then growing backlog of appeals awaiting review by the Board,

claims folders for docketed appeals were retained by field offices until BVA requested

their transfer to the Board. Retaining claims folders at VA field offices afforded appellants

access to their files during the long waiting period that existed between the time their

appeals were certified in the field as ready for BVA's review and the time the Board

could actually review them. The improvements in productivity and timeliness of the

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

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

reduced from more than 60,000 at the end ofFY 1996 to 21,013 at the end ofFY 1998.

Also in FY 1998, the Board began anActivity Based Costing (ABC) analysis, which

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

each ofBVA's work process components. This model will enable BVA to conduct actual

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

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

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

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

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

the Federal Accounting Standards Advisory Board.

Although it became effective shortly after the close ofFY 1998, the adoption by the

Board and VBA of a system-wide appeals timeliness measure warrants discussion in

this year's report, as the measure represents an important new yardstick for evaluating

the timeliness of appeals processing. This new measure, called "appeals resolution time,"

is defined as the average length of time it takes the Department to process an appeal

from the date a claimant files a Notice of Disagreement (NOD) until a case is resolved,

including resolution at a regional office or by issuance of a final, non-remand, decision

by the Board.

Timeliness measures historically used by BVA typically account only for that time

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

the Board. Appeals resolution time takes into account cases resolved in the field at the

NOD, Statement of the Case, or VA Form 9 stages through withdrawal, dismissal, award

of benefits or abandonment, as well as cases resolved by fmal, merits (i.e., non-remand)

decisions issued by the Board and cases resolved in the field while in remand status.

Actions taken on cases subsequent to a remand to the Department by the Court of Veterans

Appeals are not included, as a significant portion of the history of such cases is spent

outside the Department's jurisdiction.

Appeals resolution time will provide appellants, elected officials, Departmental

leadership, BVA and VBA management, and other interested parties a comprehensive

and meaningful indication of the average length of time to complete the entire appeal

process, rather than just that portion of the process performed within specific

organizational boundaries. Additional refinements in FY 1999 will allow VACOLS to

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

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

ofFY 2004.

17
ACCESS AND OUTREACH

The Board maintains a series of World Wide

Web (WWW) pages that provide appellants and

other "visitors" the ability to obtain answers to

many questions about the appeal process. This

on-line version of BVA's pamphlet,

"Understanding the Appeal Process," links plain

language answers to numerous commonly asked

questions. These WWW pages are accessed

from the following WWW Universal Resource

Locator (URL):

BV A decisions issued in calendar years 1994

through 1997 are available on the World

Wide Web. A series of questions and answers

Board decIsIons Issued m calendar years about the appeal process is also available

1994 through 1997 are also available in on the web.

searchable text format through VA's Web pages.

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

Disc -Read Only Memory), also discussed on page 29, which is available for purchase

by the public. The Board expects to make its 1998 decisions available through the

World Wide Web early in calendar year 1999. The URLs for BVA's decisions are:

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

~

1994

1995

1996

1997

l1BL

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

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

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

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

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

the Board, which can be accessed from a number of the Department's Web pages was

established in FY 1996. In FY 1998, more than 400 e-mail inquiries were received and

answered by the Board. The number of e-mail inquiries received by the Board has

increased each year since the link was established.

LEGISLATION

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

and appellants the right to request a review of prior VA claim and appe,llate decisions

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

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

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

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

Department.

In anticipation of the promulgation of Departmental regulations governing the

adjudication of CUE claims, the Board, near the end ofFY 1998, requested that VA field

offices transfer the claims folders of appellants who filed such claims to the Board. By

so acting, the Board positioned itself to proceed on these claims as expeditiously as

possible upon publication of the fmal Departmental regulations.

On November 11, 1998, the President signed Public Law 105-368, the "Veterans'

Benefits Enhancement Act of 1998." Although enacted early in FY 1999, the Act contains

a number of provisions drafted by the Board during FY 1997 and FY 1998:

To recognize the changed nature of the Board from a medical/legal

tribunal to a strictly legal one, the new law requires that Board members

be attorneys;

To clarify a technical error in a prior law, the new law provides that Board

members who are not "recertified" to serve as members have the right to

revert to the position of Board attorney;

To reduce delays in the issuance of Board decisions caused by late

requests for field hearings, the new law requires that field hearings be

scheduled in the order in which the appeal was filed -what the Board

refers to as "docket order" -instead of the order in which requests for

such hearings are received;

To ensure an appellant's right to a hearing without prejudicing the

rights of other appellants to a speedy decision, the new law pennits the

Board to postpone a decision on a case to afford an appellant a

hearing without violating the "docket order" rule;

To establish one set of reasonable rules, the new law establishes the same

criteria for advancement on the field hearing docket and the decisional

docket.

19
MEMBERS OF THE BOARD OF VETERANS' APPEALS

At the close ofFY 1998, the following 61 individuals, 27 of whom are veterans,

were serving as members of the Board of Veterans' Appeals. At the close ofFY 1998,

no Board member appointments were awaiting Presidential approval. There are no

physicians serving as Board members.

AGUAYO-PERELES, JOAQUIN

(DEPUTY VICE CHAIRMAN)

BLASINGAME, JACK W.

BOHAN, BARRY F.

BOSCH, RONALD R.

BRAEUER, WAYNE M.

BROWN,DEREKR.

BRYANT, ANNA M.

CALLAWAY, BETTINA S.

CHEEK, MICHAEL D.

COHN, STEVEN L.

COPELAND, BARBARA B.

DANNAHER, THOMAS J.

DAY, JONATHAN E.

DURKIN, SHANEA.

FLOWERS, FRANK J.

FRANK, RICHARD B.

GALLAGHER, MARY

GICK, GARY L.

GOUGH, JEROME F.

GREENSTREET, MARK W.

HALSEY, MARK F.

HIND IN, MARK D.

HOGEBOOM, CHARLES E.

(DEPUTY VICE CHAIRMAN)

HYMAN, BRUCE E.

JORDAN, VICKY L.

KANNEE, BRUCE N.

KELLER, STEVEN L.

KENNEDY, SUSAN L.

KRENZER, EILEEN M.

LYON, MICHAEL D.

MARTIN, JEFFREYJ.

MOEHLMANN, HOLLY E.

MONROE, JACQUELINE E.

MULLEN, ANDREW J.

ORMOND, JOHN E.

PEEVY, ALAN S.

PELLETIER, RENEE M.

PHILIPP, ROBERT D.

PHILLIPS, NANCY I.

POWELL, URSULA R.

REGAN, ROBERT P.

RICE, WARREN W., JR.

ROBERTS, JO S.

ROBIN, NANCY R.

(DEPUTY VICE CHAIRMAN)

RUSSELL, CRAIG P.

SABULSKY, MARY M.

(DEPUTY VICE CHAIRMAN)

SCHWARTZ, HOWARD N.

SENYK, GEORGE R.

SHARP, JANE E.

SHERMAN, IRIS S.

SHUFELT, GORDON H.

SINGLETON, DEBORAH W.

SPICKLER, DAVID C.

STANDEFER, RICHARD B.

(ACTING CHAIRMAN)

SULLIVAN, LAWRENCE M.

SULLIVAN, ROBERT E.

SYMANSKI, CHARLES W.

TOBIAS, CONSTANCE B.

TOBIN, LEO W., III

WILKINS, STEPHEN L.

WILLIAMS, RICHARD F.

* Eligah Dane Clark was confirmed as Chairman of the Board of Veterans' Appeals

by the U. S. Senate on October 21, 1998, following his nomination by the President. On

December 1, 1998, Mr. Clark was sworn-in and assumed the duties of Chairman. At

that time, Richard B. Standefer resumed his position as Vice Chairman.

20
SELECTION OF BOARD MEMBERS

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

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

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

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

next section of this report.

The selection process for the limited number of Board member positions is extremely

competitive -candidates must be completely familiar with the ever growing body of

applicable statutory, regulatory, and judicial authority and must acquire a solid background

in numerous subject areas, including medical matters, necessary to adjudicate the wide

variety of claims within the Board's jurisdiction. With very few exceptions, Board

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

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

manner is most commonly found in this group. Staff counsel generally require from 7 to

10 years of experience before they are considered qualified for consideration as a Board

member. Only individuals who have demonstrated the requisite level of knowledge and

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

deserve are selected. As selection of Board members is based solely on merit, the political

affiliation, if any, of the candidates is never a factor for consideration.

MEDICAL ISSUES

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

BV A physicians are employed in the decision-making process by eliminating their former

role as adjudicators. In the cases of Gilbert v. Derwinski, 1 Vet. App. 49 (1990), Colvin

v. Derwinski, 1 Vet. App. 171 (1991), and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992),

the Court held, in essence, that the Board could no longer base its decisions on its own

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

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

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

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

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

was required. However, in Austin v. Brown, 6 Vet. App. 547 (1994), the Court raised

serious questions concerning the fairness and impartiality of utilizing the opinions of

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

utilized opinions from its own medical advisers in adjudicating appeals.

21
InAugust 1995, the Court issued an opinion that further defined the status ofBVA

medical advisers' opinions in the claims adjudication process. In Williams v. Brown, 8

Vet. App. 133 (1995), the Court held that, before any use is made of the BVA medical

adviser's opinion on remand, the Board must answer the series of questions posed by

the Court in Austin. A similar result was reached in Perry v. Brown, 9 Vet. App. 2

(1996). Consequently, absent a change in the law, it is not likely that the Board will

return to the practice of utilizing the opinions ofBVA medical advisers in adjudicating

appeals.

The absence of medical members within BVA decision teams has significantly

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

Staff attorneys must be able to recognize when the need for an expert medical opinion is

warranted to fully develop a record. Board members must analyze medical evidence

with increased frequency and sophistication and provide a thorough explanation of all

medical principles upon which their decisions rely, with discussion of and citation to

independent authority, such as medical treatises, texts, journals, and epidemiological

studies. The resources of the Board's Research Center, discussed on pages 27

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

As a result of the changes discussed above, the Board now utilizes its remaining

physician staff (two full-time and two part-time physicians) in other capacities. BVA

staff physicians actively provide informal advice of a general and educational nature to

staff counsel and Board members. They each conduct several medical lectures per month,

covering topics such as basic examination procedures, orthopedic examinations, scans

and other diagnostic procedures, and understanding examination and laboratory results.

BVA physicians also review the Board's requests for medical advisory opinions ftom

sources outside BVA to

ensure accuracy in the way in

which the evidence is

reported and the questions

are ftamed.

BV A s physicians provide valuable

advice and training to counsel and

Board members on a wide range

of medical topics.

22
Because BVA cannot base its decisions on its own medical expertise, in recent

years the Board has increasingly relied on opinions provided by independent medical

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

of cause and effect contentions raised in appeals. Typically, opinions have been sought

from faculty members of leading medical schools or from Veterans Health Administration

(VHA) physicians. Many appeals have been remanded to VA regional offices to obtain

medical examinations in addition to these advisory opinions.

Advisory opinions obtained from VHA physicians have typically been provided in

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

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

by the Board. Additionally, the thoroughness and specificity of many VHA advisory

opinions have provided sufficient information to allow BVA to issue fmal decisions

without the need to remand cases to regional offices to obtain new medical examinations.

In cases where a medical opinion is likely to provide persuasive argument concerning

critical medical issues, it is likely that increased utilization of VHA advisory opinions

will result in a significant reduction in the number of remand decisions that would be

issued in the absence of such opinions.

The Board requested 81 opinions from non-VA medical experts under 38 U.S.C.

§ 7109 in FY 1998, compared with 113 opinions the previous year. In addition, the

Board requested 264 advisory opinions from medical experts from the Veterans Health

Administration (VHA) in FY 1998, compared with 160 in FY 1997.

ATTORNEY AND AGENT FEE AGREEMENTS

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

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

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

to the agreement.

In FY 1998, the Board received 794 fee agreements for filing and review, an increase

of 16 percent over FY 1997, and 114 percent over FY 1996. As shown in the

accompanying graph, the number of fee agreements received by the Board has more

than tripled since FY 1995. Most problems concerning fee agreements were handled, as

in the past, through correspondence with attorneys.

Under the authority of38 C.F.R. § 20.609(i), the Board issued 14 motions for Board

review of fee agreements. Additionally, one such motion was filed by an attorney. At

the end of the fiscal year, six motions were pending. In FY 1998, the Board issued 15

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

nine cases, it ruled that the attorney could charge a fee in three cases, and it withdrew the

motion in the other three cases.

Most of the Board's decisions concerning fee agreements involve agreements referred

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

directly by VA under 38 U.S.C. § 5904(d). Eighty-three such cases were referred for

such decisions in FY 1998, with 78 cases completed during the fiscal year. Of those

completed, 54 ordered payment to the attorney, 23 held that the attorney could not be

paid, and one was dismissed.

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

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

At the end ofFY 1998, that proposed rulemaking was still pending.

REPRESENTATION BEFORE THE BOARD

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

invaluable service to appellants. One of a service organization's representation activities

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

These representative briefs become part of an appellant's record and are considered by

the Board when reviewing appeals. In FY 1998, 85.1 percent of appellants were

represented by one of the accredited service organizations (86.2 percent in FY 1997),

4.3 percent were represented by an attorney or agent (3.3 percent in FY 1997), and 10.6

percent were not represented (10.5 percent in FY 1997). (See table on page 32, Part II.)

LIAISON ACTIVITIES

Throughout the year, the Acting Chairman made presentations to members and

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

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

Senate Committees on Appropriations. These presentations concerned the Board's efforts

to improve decisional quality and reduce the number of appeals remanded to VA Regional

Offices for development of the record, while maintaining the improvements in

productivity and decision timeliness the Board has made in recent years. The Acting

Chairman also testified at an oversight hearing before the Subcommittee on

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

Veterans' Affairs.

24
During FY 1998, the Acting Chainnan addressed or participated in more than half a

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

and state, including the national conventions of The American Legion and Disabled

American Veterans, and the annual and mid-winter conferences of the National

Association Qf State Directors of Veterans Affairs.

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

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

are handled by the Office of the Chainnan and decision team administrative personnel.

The Acting Chainnan also responded to correspondence from numerous appellants and

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

officials, and provided written responses to 2,466 Congressional inquiries in FY 1998.

QUALITY

Prior to FY 1998, BVA's quality review process was structured in a manner that did

not lend itself to quantifiable measurement and repeatable comparisons over time. During

FY 1998, the Board established a more systematic and objective approach to quality

assessment. On a daily basis, Board members and senior counsel evaluate and "score"

a statistically valid sampling of completed BV A decisions that have not yet been released

from the Board, as well as all decisions brought to the Board's attention through motions

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

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

Issues -identify and address all issues, either expressed or inferred;

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

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

Reasons and Bases -coordinate the facts of the case with the law, and

clearly explain how the decision was reached;

Due Process -address all technical aspects of due process;

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

decision structure, and statutory requirements.

25
These assessments allow the Board to objectively evaluate the quality of its

decisions and provide meaningful training for BVA counsel in specific areas where a

need for improvement is demonstrated.

PROFESSIONAL TRAINING

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

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

during FY 1998. The committee's charter is as follows:

Development of a well trained and highly motivated professional service

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

Appeals' Training Committee is to establish new procedures and refine

existing methods for providing initial and continuing legal, medical,

management, and other education and training for Board members and

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

attorney staffwill better enable the BVA to accomplish its mission to enter

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

Secretary.

The complexity of to day's veterans' law requires intensive training of new counsel

before they can become fully contributing decision team members. Newly hired attorneys

begin their participation in BVA's professional training program on their first day of

orientation at the Board. The program, developed in cooperation with the employees'

bargaining unit, includes instruction in a variety of functional areas, including appeals

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

computer word-processing and legal research techniques. The curriculum includes mentor

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

in the use of on-line reference resources, such as those discussed in the next section.

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

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

a wide variety of subject areas is taken so that attorneys, together with their supervisors,

can detennine what topic or type of training would be most beneficial at any given time

in an employee's development. Although much of the instruction is provided by Board

staff members, outside training resources are also used to augment the curriculum. For

example, to increase their understanding of the claim and appeal development activities

perfonned by regional office and Veterans Health Administration personnel, BVA

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

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

26
By coordinating its decisional quality review and counsel training programs, the

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

most. This direct linkage between BVA's flexible training schedule and the Board's

quality review program, in which completed decisions undergo objective evaluations

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

presented to BVA's attorneys is both meaningful and timely.

Highly motivated Board employees who have demonstrated the potential to assume

positions of greater responsibility are afforded the opportunity to broaden their personal

and professional perspectives through participation in Leadership VA (LV A). LVA is an

intensive leadership training experience that also provides participants the opportunity

to gain insight into the myriad of internal and external forces affecting the department.

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

senior managers attend a variety of training and managerial development seminars

appropriate for their grade and management levels. In this manner, the Board is investing

in its future to ensure its leadership is equipped with the best, most current approaches to

motivating employees and maintaining the highest possible levels of productivity and

quality.

RESEARCH MATERIALS

The Board's centralized Research Center contains reference materials most

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

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

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

General Counsel and Veterans Health Administration libraries. Other departmental and

governmental research resources are available as well, including those of the VBA

Training Academy, the Office of Personnel Management schools, and the National Judicial

College. The Internet and the Department's Intranet, both of which were made available

to BVA employees during FY 1998, permit access to a vast array of useful reference

material.

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

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

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

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

BV A network, including a significant number of automated reference materials ("research

tools"). This material is accessible through a computer selection menu that facilitates

27
conducting legal and medical research ftom an individual's workstation. Training has

been provided to familiarize network users with the resources available, the steps

necessary to access the desired infonnation, and fonnulation of search "queries."

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

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

data bases allow considerably more sophisticated searches than those typically associated

with collections of word processing documents. Indexes are used to ascertain the

availability and location of information on different subjects. The VADEX (VA Index),

for example, is analogous to a card catalogue and contains references to VA-generated

documents that are relevant to the mission of the Board. Indexes of VA Office of the

General Counsel opinions, Chainnan's numbered memoranda, and videotaped training

lectures are also available.

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

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

references to precedent decisions and opinions of the u.s. Court of 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 to Board employees and veterans' service organization

representatives connected through the Board's computer network, and has been distributed

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

adjudicators in all 58 VA regional offices. It is also included on the CD-ROM containing

Board decisions issued in calendar years 1996 and 1997, which is available for purchase

through the Government Printing Office. This asset allows staff counsel, Board members,

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

law.

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

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

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

BVA decisions issued in

calendar years 1996 and

1997 are available on CDROM. The disk also

includes the Veterans

Benefits Law Index.

28
Title 38 of the Code of Federal Regulations, which is updated monthly. A commercial

application that contains the Physicians' Desk Reference (pharmaceutical product

descriptions and information about drug interactions and side effects), the Merck Manual,

(a quick reference manual for most common diseases), and Stedman's Medical Dictionary

is also available to BVA attorneys. Precedent opinions of VA's Office of the General

Counsel since 1993 and Chairman's numbered memoranda since 1991 are available in a

word processing format. Several VBA resource items, including directives, training

guides, and manuals, are also provided in a searchable format.

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

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

Court of Veterans Appeals; information concerning military awards and decorations; a

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

and a BVA training guide on hearing loss disability, tinnitus, and neurology.

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

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

Benefit Law Index are available for purchase from the Government Printing Office on

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

years 1994 through 1997 are available in searchable text format through the WorldWide Web. This public access to Board decisions represents an enormous potential

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

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

EPILOGUE

The Board of Veterans' Appeals has prepared this report not only to fulfil its statutory

reporting requirements, but to provide an overview of the history and operation of the

Board from its establishment in 1933 to the present. Particular emphasis has been paid

to BVA's activities and achievements during FY 1998. However, this report also serves

as a catalogue of the most significant events that have affected the adjudication of veterans'

appeals during the ten-year period from November 1988 through the end of

FY 1998 -the Board's first full decade of operation since enactment of the Veterans

Judicial Review Act on November 18, 1988.

In many ways, judicial review has been a double-edged sword for veterans and

their families. The body of veterans' common law that has emerged under judicial

review provides appellants with more clearly defined and equitably applied bases for

the adjudication of their appeals. Appellants enjoy the right to have their appeals reviewed

29
by the independent Court of Veterans Appeals. However, appellants must now contend

with a much more formal, and much less speedy, legal process than that which previously

existed.

The past ten years have brought unprecedented change and unprecedented challenge

to the entire veterans benefit adjudication system. Undoubtedly, the second decade

under judicial review will likewise be fraught with change and will likewise present

new challenges. The Board fully expects to continue to adapt to whatever changes are

introduced and to meet whatever challenges are presented as successfully as it has in the

past.

30
PART II

FY 1998 STATISTICAL DATA

During FY 1998, BVA issued 38,886 decisions. This total represents a 10.3 percent

decrease from FY 1997, when 43,347 decisions were issued. The decrease is primarily

a result of (1) a higher percentage of final, non-remand decisions (56.7 percent) than

was issued the previous year (53.3 percent), and (2) a heightened emphasis on decisional

quality. The disposition of the Board's decisions by category of appeal is provided

below.

Category Total Allowed Remanded Denied Other

32,942

774

407

47

2,140

468

647

327

85

83

966

Disability compensation

Disability pension

Medical

Insurance

Death

Education

Waivers

Loan guaranty

Reconsiderations

Character of discharge

Miscellaneous

6,059

71

39

3

156

27

104

46

29

4

169

13,811

399

139

12

665

116

271

154

26

29

402

12,448

289

206

32

1,288

317

254

120

29

50

335

624

15

23

0

31

8

18

7

1

0

60

Totals 38,886 6,707 16,024 15,368 787

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FY Decisions Allowed Remanded Denied Other

1995 28,195 19.5% 47.5% 22. 7% 10.3%

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

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

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

FY 1996 FY 1997 FY 1998

Decisions 33,944 43,347 38,886

Case Receiptsl

Added to Docket 38,447 32,916 32,034

Received at BVA 32,405 44,110 39,851

Cases pending2 60,120 39,657 21,013

Response Time 595 334 197

FTE 468 492 483

Decisions per FTE 72.5 88.1 80.5

Cost per Case $950 $839 $965

Hearings -VACO 431 1,297 1,255

Hearings -Field 2,445 4,564 2,469

Hearings -Video 48 233 1,151

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

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

cases physically received at the Board, including original appeals received pursuant to

case callup procedures, as well as all cases returned to the Board's docket. (I.e., cases

returned following remand development, cases remanded by the Court, and cases received

for reconsideration or vacate actions).

2 Pending figures include certified appeals pending in the field as well as cases pending at

the Board.

33
* Estimated

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

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

immediately preceding one-year time frame.

45,000

40,000

35,000

30,000

25,000

20,000

15,000

10,000

5,000

0

FY94 FY95 FY96 FY97 FY98 FY 99*

* Estimated

34
100

90

80

70

60

50

40

30

20

10

0

FY94 FY95 FY96 FY97 FY98 FY 99*

Estimated *

$1,400

$1,200

$1,000

$800

$600

$400

$200

$0

FY94 FY95 FY96 FY97 FY98 FY 99*

* Estimated

35
PART III

ADDITIONAL INFORMATION PROVIDED PURSUANT TO

STATUTORY REQUIREMENTS

I. 38 U.S.C. § 7101(c)(2)

The following information is provided in accordance with the requirement of

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

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

the preceding year. Fifty-five attorneys served as acting Board members from time to

time during FY 1998 for a total of6.9 FTE. One physician served as an acting Board

member for a total of .004 FTE. Thus, the total FTE of all acting Board members in FY

1997 was 6.9 FTE. The Board uses a system of written designations of acting Board

members by the Chairman to ensure adherence to the statutory requirements regarding

the use of acting Board members.

II. 38 U.S.C. § 7101(d)(2)

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

Administration, VA instituted the practice of adding appeals to BVA's docket upon receipt

of Substantive Appeals (VA Form 9) by the Board, while retaining associated case folders

at regional offices until a time proximate to when the Board would begin its active

review of the cases. This "advance docketing" system is a benefit to appellants because

it allows them access to their case folders for the filing of new claims or other actions

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

Board's docket.

37
The following estimates of new Notices of Disagreement received in the field are

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

a Notice of Disagreement is filed are resolved at the regional offices and, therefore,

never reach the Board.

Estimated Number of New Notices of Disagreement Received in the Field

FY96

6,626

5,001

3,904

5,979

6,310

7,185

6,819

7,164

6,375

6,306

6,864

.Q..n1

FY97

6,213

5,332

5,025

4,978

5,329

5,648

6,087

5,992

5,198

5,574

5,466

~

~

5,787

4,737

4,877

4,448

4,801

5,777

5,878

5,464

6,061

5,783

5,928

~

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 74,757 66,566 65,373

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

appealed during any given time frame approximated the number of case folders physically

received at the Board, as the folders were transferred to the Board upon their certification

as being ready for BV A's review. Since the change, the number of cases appealed during

any given time frame necessarily includes the number of appeals (VA Form 9) added to

the Board's docket as well as those case folders physically received at the Board.

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

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

following completion of remand development actions by the originating VA field activity,

cases remanded by the U. S. Court of Veterans Appeals, and cases received for

reconsideration or vacate actions). Appeals added to the Board's docket consist of new

appeals of original or reopened claims. Appellants file new appeals with the VA field

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

received in the field are then added to the Board's docket by the receiving VA regional

office using the shared information system technology described earlier on page 14.

38
Many new appeals are resolved in the field without ever reaching BVA, including

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

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

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

are physically transferred to the Board.

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

(A) Number of cases appealed to BVA during FY 1998:

Cases received at BVA:

Cases added to BVA Docket:

39,851

32,034

(B) Number of cases pending before BVA at the start ofFY 1998:

Number of cases pending before BVA at the end ofFY 1998:

39,657*

21,013*

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

(C) Number of cases filed during each of the 36 months preceding FY 1999:

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

FY96

3,580

2,546

1,914

3,575

2,615

3,562

3,496

3,947

3,133

3,037

3,594

3,478

FY97

2,862

3,098

2,812

2,859

2,430

2,846

2,631

3,154

2,618

2,810

2,531

2,265

FY98

3,634

2176 ,

2,408

2,332

2,607

3,894

2,558

2,196

2,578

2,540

2,489

2,622

FY96

2,020

1,967

55*

3,963

3,427

2501 ,

2,892

3,194

2,960

2,926

3,676

2,824

FY97

4,184

3,782

4,029

3,143

3,558

3,639

3,173

3,393

3,778

4,359

3,490

3,582

EY.2.8:

3,639

3,215

3,182

2,502

2,879

3,552

3,726

2,788

3,578

3,675

3,520

3,595

Month

October

November

December

January

February

March

April

May

June

July

August

September

FY Total 32,405 44,110 39,851 38,477 32,916 32,034

* Reflects impact of Government shutdown

39
(D) Average length of time a case was before the BVAbetween the time of the filing

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

Average Elapsed

Processing Time

Responsible

Time Interval Party

Notice of Disagreement Receipt Field Station 73

to Statement of the Case Issuance

Statement of the Case Issuance 65

to Substantive Appeal Receipt

Appellant

Substantive Appeal Receipt to Field Station 612 days

Certification of Appeal to BVA

Receipt of Certified Appeal to 120

Issuance ofBVADecision

BVA

Average Remand Time Factor Field Station 97 days

(E) Number of members of the Board at the end ofFY 1998: 61 members

Number of professional, administrative, clerical,

stenographic, and other personnel employed by the

Board at the end ofFY 1998: 424 employees

55 acting members

3,260 cases

Number of acting members of the Board during FY 1998:

Number of cases in which such members participated:

(F)

III. 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 1999: Cases received at BVA: 39,000

Cases added to BVA Docket: 32,000

39,000

33,000

Cases received at BVA:

Cases added to BVADocket:

Fiscal year 2000:

40
(B) Evaluation of the ability of the Board (based on existing and projected personnel

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

(1) Background on BVA Timeliness Pro_iections. The indicator used by the BVA

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

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

of appeals that are currently pending before the Board, BVA response time projects the

average time that will be required to render decisions on that same group of pending

appeals. For response time computation purposes, the term "appeals pending before the

Board" includes appeals that have been certified for BVA review but are being held in

the field pending BVA action. BVA response time is computed by fIrst determining the

Board's average daily appeals processing rate for a recent given time period. This is

determined by dividing the number of appeals decided by the calendar day time period

over which those appeals were dispatched. BVA response time is then computed by

dividing the number of appeals pending before the Board by the average daily appeals

processing rate. As an example, BVA's estimated response time forFY 1999 is computed

as follows:

Estimated 37,200 Decisions in FY 1999 -7 365 Days = 101.92 Decisions per Day

19,813 Appeals Pending before the BVA (end ofFY 1999) -7101.92 Decisions

per Day = 194 Day Response Time on Appeals (end ofFY 1999)

(2) Response ~Projections: Based upon existing and projected levels of

resources, the estimate ofBVA response time, as given in the Board's FY 2000 budget

submission, is 194 days for FY 1999. These response time projections are contingent

upon BVA's original appeal receipts estimates for FY 1999 and FY 2000 shown in

paragraph III(A), above.

ESTIMATES OF FUTURE TIMELINESS AND PRODUCTIVITY

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

However, certain factors could arise to affect those estimates. For example, precedent

decisions of the United States Court of Veterans Appeals may impose additional

requirements for case analysis and development. Because decisions of the Court are

effective immediately upon issuance, precedential decisions may require that the Board

readjudicate a large number of cases already adjudicated, but not yet dispatched from

the Board.

41
The Board's estimates of future timeliness and productivity can only approximate

the impact of cases remanded to regional offices for additional development. The majority

of these cases eventually are returned to the Board for adjudication, but the Board cannot

anticipate when the requested development will be completed or how many cases will

be returned to the Board. The estimates do not include those cases returned to the Board

by the Court of Veterans Appeals for readjudication.

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

by numerous factors, including: (I) directives of the Court that require additional time,

effort, and resources to produce ,appellate decisions; (2) the necessity to stay the

adjudication of certain classes of cases pending resolution of appeals as a result of

decisions of the Court of Veterans Appeals; and (3) receipt of cases remanded for

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

factors will intlueoce the Board's productivity in FY 1999, but it is not possible to quantify

their possible effects. Additional unanticipated factors could also arise to affect decision

production.

-E=:~~~2~ 3 -

42