Veteranclaims’s Blog

April 5, 2009

Certified List, before 1994 prepared for each BVA decision

Filed under: "certified list"; traveling board; 1994; — veteranclaims @ 2:47 pm

The 1994 Report of the Chairman of the BVA to Congress is note worthy in that it states that prior to 1994 “certified lists” were prepared for each BVA decision, going forward they will only be prepared for those appeals where a NOA to the CAVC is received.

“In 1994, a number of initiatives were implemented:
The preparation of certified lists of relevant evidence –for a time prepared for
every Board decision –is now limited to those cases for which a Notice of
Appeal has been filed with the Court. Anecdotal information indicated that
counsel spent an additional 4 to 6 hours on each case to identify and list every
item of relevant evidence. Board members also expended additional time in
reviewing, considering, and acting on each item listed.”

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Another item of interest is the new statutory right to a hearing before a traveling Board.
the VJRA made a hearing before “a traveling section of the Board” a
matter of statutory right.

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DEPARTMENT OF VETERANS AFFAIRS
Chairman, Board of Veterans’ Appeals
Washington DC 20420
December 23, 1994
The Honorable Jesse Brown
Secretary of Veterans Affairs
Washington, DC 20420
Dear Mr. Secretary
I respectfully present for your submission to Congress the Report of the
Chairman, Board of Veterans’ Appeals, for fiscal year 1994. Parts I, II, and III of this
report are intended to provide an overview of the Board and its activities during fiscal
year (FY) 1994 and the projected activities of the Board for FY 1995, as is mandated by
38 V.S.C. § 7101(d)(I). The specific information required by 38 V.S.C. § 7101(d)(2) and
(3) is contained in Part IV of this report.
Fiscal year 1994, like the previous fiscal year, was one of tremendous change at
the Board as a result of legislative changes and the continued evolution of veterans’
benefits law, as interpreted by the United States Court of Veterans Appeals. I believe the
combined effects of this past year’s legislative actions and the initiatives you instituted
will result in a more timely system delivering a higher quality product.
I thank you for your leadership, commitment, and invaluable assistance as the
Board continues to strive for excellence, improved timeliness, and increased customer
satisfaction in this era of unrelenting change in the veterans’ claims adjudication
environment.
I hope that the enclosed report provides you, the Congress, and the veterans that
we serve with a comprehensive picture of the Board, its mission, and its activities.
Very respectfully,
Enclosure
Charles L. Cragin
TABLE OF CONTENTS
PART I. THE BOARD OF VETERANS’ APPEALS
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HISTORICAL OVERVIEW 1933 to 1988 (Before Judicial Review) 1988 1994 Since Judicial Review) 1994: A YEAR OF CHANGE AND REINVENTION …’…””…’..’.”.’.” ‘ ‘.’.’.’..
Administrative Initiatives Select Panel on Productivity Improvement Legislative Initiatives Claims File Security ORGANIZATION OF THE BOARD : MEMBERS OF THE BOARD OF VETERANS’ APPEALS SELECTION OF BOARD MEMBERS THE ROLE OF THE BV A PHYSICIAN REVIEW OF ATTORNEYS’ AND AGENTS’ FEE AGREEMENTS REPRESENTATION BEFORE THE BOARD LIAISON ACTIVITIES Correspondence and Congressional Liaison Activities …
hV ‘ S . 0 ..
LIaIson Wit eterans ervlce rganlzatlons Other Liaison Activities PROFESSIONAL TRAINING AUTOMATION INITIATIVES CUSTOMER SERVICE .,.”.,.,.,…,.,.., , ,..,..,.”.,.,..” TOTAL QUALITY MANAGEMENT (TQM) WORLD WAR II 50th ANNIVERSARY COMMEMORATIONS
PART II. REMARKS OF THE CHAIRMAN AT THE THIRD JUDICIAL
CONFERENCE OF THE U. S. COURT OF VETERANS APPEALS
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BIASOLN HOAONRTRGDTR- T-TEOERRMMD UCTIJOUDNICIA L ALFTdiehmvewmai tenpercod er a ry OF Select VETERANS’ CHoYllaBteRrIaDl BOARDC ertifieBdO ADRoDc keting Panel Suspension INAIsTosInAig TnImVeELnSist sItN ITIATIVES APPEALSP roductivity Preparation of Hearings ADMINISTRATIVE Improvement
PROCEDURES IMPROVEMENT ACT 31
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TAAMHD EEMD IINCIASJLTU RDAICllVIAEL BOARD’S OPINIONBSE,C OMINRGO LE LAW IN AUSTIN THEJ UDGE JUDICVI AL BPRAOYW N COMPARREAVBIEI”LW”I.T. “Y.. .’ ERA ” .., ‘ ‘ 32
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PART III. FY 1994 STATISTICAL DATA
TABLES AND GRAPHS 37
PART IV. ADDITIONAL INFORMATION PROVIDED PURSUANT TO
STATUTORY REQUIREMENTS
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IE. STIM3388A TUEU..SSS. .CC.. §§O F77 11 010F(1dU )(T2(U)d U)R(.3 E) TIMELINESS AND PRODUCTIVITY
IV
PART I
THE BOARD OF VETERANS’ APPEALS
The Board of Veterans’ Appeals (B V A or Board) is the component of the Department
of Veterans Affairs (V A) that is responsible for entering the final decision on behalf of
the Secretary in each of the many thousands of claims for entitlement to veterans’ benefits
that are presented annually for appellate review. The Board’s mission, as set forth in 38
U.S.C. § 7101(a), is “to conduct hearings and dispose of appeals properly before the
Board in a timely manner” and to issue quality decisions in compliance with the
requirements of the law, including the precedential decisions of the United States Court
of Veterans Appeals. The Board renders final decisions on all appeals for entitlement to
veterans’ benefits, including claims for entitlement to service connection, increased
disability ratings, total disability ratings, pensions, insurance benefits, educational
benefits, home loan guarantees, vocational rehabilitation, dependency and indemnity
compensation, and many more. About 90 percent of the claims before the Board involve
medical subject matter. In addition, pursuant to 38 U.S.C. § 5904, the Board is
responsible for deciding matters concerning fees charged by attorneys and agents for
representation of veterans before the Department.

HISTORICAL OVERVIEW
1933 to 1988 (Before Judicial Review)
By Executive Order 6090, effective March 31, 1933, Veterans Regulation No.2,
Part II, President Franklin D. Roosevelt established the Veterans Administration as the
organization responsible for administering all veterans’ programs and benefits. The
previous patchwork system of appellate adjudication of claims for veterans’ benefits was
eliminated and all questions of entitlement to benefits were subject to a single appeal to
the Administrator of Veterans’ Affairs. On July 28, 1933, President Roosevelt created the
Board of Veterans’ Appeals by Executive Order 6230, Veterans Regulation No. 2(a). The
Board was delegated the authority to render the final decision on appeal for the
Administrator and, organizationally, was directly responsible to the Administrator. The
Board was charged “to provide every possible assistance” to claimants and to take final
action that would “be fair to the veteran as well as the Government.” Initially, the Board
was composed of a Chairman, Vice Chairman, and no more than 15 associate members.
In the 1930s, the Board established procedures, guidelines, and precedents, many of
which eventually were codified as regulations.
In the 1940s, procedures were established for affording appellants hearings, including
recorded hearings conducted in the field by traveling Board members. The Board’s
workload was greatly increased in the aftermath of World War II. For example, in 1949
the Board rendered almost 70,000 decisions. These decisions generally were simple,
short, and concise. The 1950s were characterized by the implementation of
organizational and operational programs to achieve more efficient case management.
During the 1960s, the Board was enlarged to 14 sections of three members and the
scope of the travel Board hearing program also was expanded. The Board’s role in the
promulgation of claims adjudication policy was terminated because it was felt that this
was inconsistent with the Board’s primary function as an independent, quasi-judicial
agency within V A. Appellate policy also was significantly altered with the enactment of
Public Law No. 87-666, effective January 1, 1963, which required the agency of original
jurisdiction to furnish an appellant a “Statement of the Case,” a document containing a
detailed recitation of the evidence, applicable laws and regulations, and explanation of the
rationale underlying the denial of the claim. Also in 1963, the Board was granted
statutory authority to obtain an advisory :.opinion from one or more medical experts who
are independent of V A in cases involving complex or controversial medical issues. The
Board’s Rules of Practice were extensively revised and were first published in the 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 BV A decision, increased significantly. At the end of fiscal year (FY) 1982, the
average appellate processing time was 483 days, up from 443 days the preceding year.
To help with the increased workload, the President approved an increase in the number of
Board members to form 19 three-member sections in 1984. The maximum number of
authorized Board members subsequently was increased to 67 and 21 sections were
formed. This remained the authorized strength level until 1994, when the limit on the
number of Board members was removed. The number of appeals initiated remained in
the 60,000s until FY 1989 when a peak of 74,291 was reached. This figure returned to
the 60,000s in the early 1990s. Appeals carried through to completion and certified to the
Board for review decreased somewhat in the early 1990s, going from almost 44,000 in
FY 1990 to just over 38,000 in FY 1993.
J 988 to J 994 (Since Judicial Review)
The passage of the Veterans’ Judicial Review Act (VJRA), Pub. L. No. 100-687 (Nov.
18, 1988), which established the U.S. Court of Veterans Appeals (the Court), was the
most revolutionary change in the adjudication system since the inception of the Board in
1933. Decisions by the Court have had a profound impact as the Board actively seeks
ways to adapt to new interpretations of veterans’ law and designs and implements new
procedures required to meet the continually evolving requirements of the law. While
few, if any, decisions of the Court have resulted in an improvement in decision
2
productivity or timeliness in the VA adjudication system, judicial review has resulted in
more consistent and detailed decisions.
Response time and decision productivity have been degraded by the impact of changes
in the law, as interpreted by the Court. Compliance with the law necessitates achieving
and maintaining standards of decision quality at a level not contemplated prior to the
enactment of the Act. As a result, BV A decisions have become longer and more
complex. Factors affecting the timeliness of appellate processing include the evidentiary
development required by the Department’s “duty to assist” claimants; compliance with the
directives of the Court in an ever-growing number of important decisions; the
procurement of a greater number of medical opinions and extensive medical research by
the Board and its staff; a large volume of requests for fonnal hearings before the Board,
as well as a significant amount of time involved in travel for hearings at VA regional
offices; the strict requirements imposed by more fonnal Rules of Practice; the added
responsibilities of attorney fee agreement processing and review; the re-adjudication of
cases remanded by the Court to the Board and those returned from V A regional offices to
the Board following completion of development requested by the Board on remand.
BV A response time increased from 139 days at the end ofFY 1991 to 240 days at the end
ofFY 1992. At the end ofFY 1993, response time was 466 days and 781 days at ~e end
of FY 1994.
Response time is defined as the number of days it would take BV A to
render decisions on all pending appeals at the processing rate of the
immediately preceding one-year timeframe
While the 61,618 notices of disagreement filed in FY 1994 were only slightly less than
the 65,676 filed in FY 1993, only 18,067 appeals were certified to the Board. This figure
is deceptively low, however, as it reflects a significant procedural change instituted
during 1994 whereby a claims folder is not transferred from a V A regional office t.o the Board until shortly before the Board begins its active review of the associated case. This procedure, known as “advance docketing,” is discussed further on pages 7 and 26-27.
3
Additionally, the VJRA made a hearing before “a traveling section of the Board” a
matter of statutory right.
This led to an increased demand for such hearings. Six times as
many field hearings were conducted during FY 1993 than were conducted in FY 1983. In
FY 1994, the increase in BV A response time resulted in an unacceptably long period
between the time when a hearing was held and the time when the Board actively reviewed
the associated case. In many cases, information provided during personal hearings was
outdated, stale, or of other limited usefulness by the time the Board began its review. To reduce this lag time, the Board temporarily suspended the scheduling of all personal hearings at the Board’s Washington, DC, offices and at V A regional offices from May 1, 1994, through the end of the fiscal year. In the future, hearings will be scheduled to be held at a time proximate to when the Board begins its active review of a case.
The VJRA removed an historic $10 limitation on the fees which attorneys-at-law and
claims agents who represent V A claimants may charge. The Act gave the Board original
jurisdiction to review agreements for the payment of such fees. The private bar has yet to
show significant interest in the practice of veterans’ law. .

Court decisions having a significant impact on the V A adjudication process are
abundant. For example, in Schafrath v. Derwinski, I Vet.App. 589 (1991), the Court
directed that the Board consider every potentially applicable regulation in its decision, regardless of whether it was raised by the appellant or considered in the field. In Bernard v. Brown, 4 Vet.App. 384 (1993), and Thurber v. Brown, 5 Vet.App. 119 (1993), the Court imposed significant new procedural steps before a final decision by the Board may be issued.
The Court held in Tobler v. Derwinski, 2 Vet.App. 8 (1991), that its
decisions are binding on V A as of the date they are issued. With the repeal in
August 1991 of the provision of 38 U.S.C. § 7267, which provided that the
Court’s decisions would become final 30 days after their issuance, and with the
Court’s decision in Tobler, the Board is provided no time to effectuate the Court’s
decisions. This often requires the Board to stop the flow of cases, identify those
cases that are affected by the Court’s decision, and re-adjudicate them.
Another area in which the Court’s
opinions have expanded both the
complexity of decision-making and the
workload of the Board is in the
reconsideration of prior BV A decisions.
The body of veterans’ common law accessioned
its sixth volume during FY 1994.
4
In Boyer v. Derwinski, I Vet.App. 531 (1991), the Court held that, on reconsideration, the Board must entirely re-adjudicate the case on a de novo basis, as if the prior decision had never been entered.
The Court often reviews decisions of the Board that were decided before the Court
issued an important binding decision in the area of law involved. Consequently, many
decisions are returned to the Board for re-adjudication. Furthermore, because of Court
decisions that are issued between the time a V A field adjudication is made and the time it
comes before the Board on appeal, the Board’s own remand rate has been about twice its
historic level for the past four fiscal years. Both the decisions remanded by the Court to the Board and those returned from the regional offices after the Board has remanded them require re-adjudication by the Board and result in a vastly increased workload.
Other decisions by the Court, particularly those interpreting the requirement of
38 V.S.C. § 7104(d) that the Board’s decisions include supporting “reasons or bases,”
have had a profound impact on the way that the Board adjudicates cases and on the
historically non-adversarial nature of Board proceedings. The result of the Court’s
decisions in cases like Murphy v. Derwinski, 1 Vet.App. 78 (1990), and Colvin v.
Derwinski, 1 Vet.App. 171 (1991), is that the Board can no longer decide cases on the
basis of the medical expertise of its members, but must rely solely on the evidence of record. In Austin v. Brown, 6 Vet.App. 547 (1994), the Court raised serious questions concerning the fairness and impartiality of the Board’s procedures for utilizing medical adviser opinions from physicians employed by the Board. At the present time, the Board is considering a regulatory change that will expressly authorize the Board to obtain opinions on the record from Department medical personnel. Cases like Jones v. Derwinski, 1 Vet.App. 210 (1991), have required a candid assessment of the credibility of lay testimony not in keeping with the non-adversarial approach that has historically characterized VA proceedings. Decisions like McGinnis v. Brown, 4 Vet.App. 239
(1993), and many others require that the Board also be more technical and “legalistic” in its approach to decision writing.
In the early years of its existence, the Court expanded the reach of its jurisdiction in decisions like Smith v. Principi, 3 Vet.App. 378 (1992), holding that the Board is required under 38 C.F.R. § 3.105(a) to adjudicate contentions that it has committed “clear and
unmistakable error” in rendering previous decisions that have since become final, and
Patterson v. Brown, 5 Vet.App. 362 (1993), holding that the Court had jurisdiction to
review the Chairman’s dcnials of motions fQf reconsideration. However, the U.S. Court
of Appeals for the Federal Circuit reversed the Court, holding, in Smith v. Brown, 35 F .3d
1516 (Fed. Cir. 1994), that the clear and unmistakable error review authority in 38 C.F .R. § 3.1 05( a) relates only to review of agency of original jurisdiction decisions and not those of the Board. The u.s. Court of Appeals for the Federal Circuit again reversed the Court, holding, in Mayer v. Brown, 37 F.3d 618 (Fed. Cir. 1994), that the Court had no jurisdiction to review decisions of the Chairman. .
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In the legislative arena, two pieces of FY 1994 legislation have had and will continue
to have a significant effect on the Board and the quality and timeliness of its decisionmaking.
Signed into law by the President as Pub. L. No. 103-271 on July I, .1994, the
“Board of Veterans’ Appeals Administrative Procedures Improvement Act of 1994”
fundamentally changes the way the Board operates by providing for decisions by
individual Board members, rather than by panels of three members. This Act also
consolidated BVA hearing procedures and permitted, for the first time, advancement on
the hearing docket for BVA hearings at regional offices. Undoubtedly, this is one of the most significant pieces of legislation affecting the Board in the Board’s 61-year history.
Pub. L. No. 103-446, the “Veterans’ Benefits Improvements Act of 1994,'” enacted after the close of FY 1994, provides career incentives and stability for the Board’s most experienced members, thereby correcting a significant problem with attrition to the administrative law judge program. In addition, this Act, for the first time, permitted the Board to screen cases out of docket order in order to insure that the record is ready for final consideration on the merits. Both of these measures are discussed in greater detail, beginning on page 10 of this report. .

1994: A YEAR OF CHANGE AND REINVENTION
Administrative Initiatives
Over the past several years, the Board has introduced numerous administrative
initiatives to meet the challenges resulting from judicial review and to improve the
service it provides to veterans and their families. These initiatives have included the
complete revision of decision analysis and fonnat (1991); the use of single Board
member hearings as opposed to panel hearings (1992); the introduction of a “trailing”
hearing docket (1993); improvements in direct responses to customers and responses to
Congressional and other inquiries (1993); and the consolidation of all BV A employees in
the Washington, DC, area in one building (1993).
In 1994, a number of initiatives were implemented:
The preparation of certified lists of relevant evidence –for a time prepared for
every Board decision –is now limited to those cases for which a Notice of
Appeal has been filed with the Court. Anecdotal information indicated that
counsel spent an additional 4 to 6 hours on each case to identify and list every
item of relevant evidence. Board members also expended additional time in
reviewing, considering, and acting on each item listed.

0
Internal administrative procedures have been revised to expedite the processing of
paperwork.
0
The length of the “Introduction” section of Board decisions has been reduced to
minimize the time-consuming restatement of the history of each case.
0
6
0 The Board implemented “advance docketing” procedures, permitting the
placement of cases on the Board’s docket as soon as a “substantive appeal” (V A
Form 9) is filed, rather than when an appeal folder is received at the Board. This
procedure assures that all appellants are treated fairly in docket order assigrunent.
It also greatly reduces the need to transfer records between the Board and VA
regional offices, thereby reducing the time expended on responding to case status
inquiries and on the case transfer and tracking processes. In addition, “advance
docketing” permits V A to comply with the Court’s decision in Ebert v. Brown, 4
Vet.App. 434 (1993), by providing regional offices with access to veterans’
records to act on new claims while appeals of earlier decisions remain in appellate
status.
Ongoing measures include the prompt dissemination of the Court’s decisions within
the Board and the provision of guidance in response to individual Court decisions; an
increase in the attorney staff that prepares draft decisions; the institution of a formal, comprehensive training program for staff counsel; the introduction of computer equipment to facilitate the production of decisions and the tracking of cases and other data; and the inclusion of staff physicians in quality review activities.
The Board is currently working on the following additional administrative measures:
Revising hearing scheduling procedures so that case hearings are conducted
nearer to the time when cases are reached on the Board’s docket.
Examining BVA’s current staffing to eliminate or combine positions not directly
associated with the generation of decisions, thereby permitting the appointments
of additional Board members and the hiring of additional counsel without
exceeding existing limits on the number of BVA employees authorized.
Attempting to expand programs to reward exceptional perfonnance and special
contributions by BV A employees, thereby providing incentives for more ~fficient
decision production.
Realignment of the Board’s operational processes to more effectively operate in a
single Board member decision environment.
Select Panel on Productivity Improvement
In February 1994, the Chairman advised the Secretary that, while the administrative
initiatives implemented by BV A, in the aggregate, would help to improve productivity
and response time, they would not restore these traditional measures of organizational
effectiveness to historic levels. Long-term measures that would address the underl~ing
causes of the backlog, to the extent possible within this new legal environment, were
needed.
7
Accordingly, the Chainnan suggested that the Secretary establish a Select Panel
charged with exploring new approaches to enable the Board to redefine the way it
operates and to develop and consider any changes that would enable the Board to meet
more effectively the challenges posed by the current adjudication and appellate
environment. Given the experience of the Blue Ribbon Panel, which was convened last
year to deal with a similar set of circumstances in the Veterans Benefits Administration,
the Board hoped that such intensive, concentrated effort would provide significant
insight.
In response, in March 1994, the Secretary chartered the Select Panel on Productivity
Improvement at the Board of Veterans’ Appeals. The Panel, chaired by Mr. Guy
McMichael, Chairman of the Board of Contract Appeals, included the Under Secretary
for Benefits and representatives from the leading veterans’ service organizations, the
Social Security Administration, the General Counsel’s office, and the Board. It was
charged with “conduct[ing] a systematic review of the Board of Veterans’ Appeals and its
relationship with other Departmental elements, and mak[ing] recommendations regarding
the mission, structure and operations of the Board that will result in more timely
processing of claimants’ appeals.”
The Panel explored a variety of approaches and presented 12 specific
recommendations to the Secretary in June 1994. The recommendations, all of which
were subsequently approved by the Secretary, reflected a consensus, if not unanimity, of
the group. At least in part, the recommendations involved not only the Board, but other
elements of the Department. The Board is now in the process of implementing each of
these recommendations.
First, the Panel recommended that the Department revise its timeliness measurement
system to address the claimants’ real concern –the total time from the filing of a claim to
the receipt of a final V A decision. The Board has begun to implement this new
timeliness measure, in addition to others that address budgetary and future planning
needs.
The Panel also advised that the Veterans Benefits Administration (VBA) continue its
aggressive efforts to implement the recommendations of the Blue Ribbon Panel that, in
1993, examined the problems causing delay in the adjudication process at the Regional
Office (RO) level. The Panel stressed that VBA should continue to give a high priority to
its efforts to improve the development of evidence at the RO, which would ultimately
reduce the number of cases remanded to the RO by the Board for needed development.
In addition, the Panel counseled that expedited treatment be afforded to cases that have
been remanded to the RO by the Board. The Under Secretary for Benefits directed that
this latter measure be implemented immediately.
The Panel recommended that the Board be granted the authority to perform an initial
review or “prescreening” of appeals in advance of the time when that case would
ordinarily be considered and decided in docket order. This prescreening procedure
8
enables the Board to identify deficiencies in the record and initiate corrective action while
the case awaits final consideration on the merits based on its place on the docket.
Language amending 38 U.S.C. § 7107 to authorize such prescreening procedures was
included in legislation that was enacted by Congress and was being considered by the
President at the close of the fiscal year. On November 2, 1994, the President signed the
“Veterans’ Benefits Improvements Act of 1994” into law as Pub. L. No. 103-446. (A
discussion of this legislation is included in this report, as its development and passage by
Congress was one of the most significant events affecting the Board in FY 1994.)
The Panel also recommended providing better and more comprehensive training and
performance measurements for BV A staff counsel; modifying the V A Form 9
(substantive appeal) to encourage appellant consultation with a service representative;
seeking legislation to increase hearing options by authorizing the conduct of BV A
hearings, at the claimant’s option, by a RO official acting as an agent for the Board;
exploring the possibility of expanding the geographic locations at which hearings may be
held by the use of teleconferencing technologies; improving the training and methbds of
evaluating performance of staff counsel; increasing the use of advanced technological
systems, such as document imaging and the use of CD-ROM and other on-line computer
technologies; and resolving attrition problems at the Board resulting from the loss of pay
equity between Administrative Law Judges (ALl) and Board members, and those
resulting from the imposition of fixed terms of employment on Board member positions.
Perhaps the most interesting
recommendations of the Panel focused on
redefining the Board’s role in the VA
benefits adjudication system. The Panel
concluded that the Department should
increase individual accountability in the
appellate adjudication process to improve
timeliness and ensure the highest quality
consideration of a claim’s merit. It
recommended that the Secretary promulgate
regulations granting the Board complete
authority to develop, consider, and dispose
of a case once a substantive appeal (VA
Fonn 9) is filed. This represents a
significant change from thc current
procedure for dealing with cases in which
the record is insufficient for appellate
adjudication on the merits. The Board
generally remands such cases to the agency
of original jurisdiction, which is charged
with developing the record and then readjudicating
the claim.
Select Panel on Productivity
Improvement for the BVA
‘Purpose: To conduct a systemic review of the
Board of Veterans’ Appeals and its relationship with
other Departrnental elements and make
recormnendations rega,ding tt.” “,…ion, ,”uc”””
and operations of the Board th,,! will result in more
t;mely processing of claimant, appeals:’
Jesse Brown
Secretary March 25. 1994
The Secretary’s Selcct Panel on Produftivity
Improvemenpt resented1 2 specific
recommendations.
9
The Panel suggested that the new procedure permitting the Board to obtain evidence
directly or otherwise develop the claim without remanding the case to the RO for
development and re-adjudication should be perfected in a trial or pilot program.
Claimants would be allowed to “opt out” of the revised system and continue to have their
appeals processed in the current manner.
Legislative Initiatives
FY 1994 was a year of enormous legislative accomplishment for the Board. The
President signed into law two measures that are fundamentally changing the way the
Board does business and will ensure that the Board is able to retain the best and brightest
of its members.
On July 1, 1994, the President approved S. 1904, the “Board of Veterans’ Appeals
Administrative Procedures Improvement Act of 1994,” as Pub. L. No. 103-271. This
measure, which resulted in part from the personal involvement of the Secretary arid the
Chairman in coordination with veterans’ service organizations, ended the 60-year
requirement that decisions be issued by a panel of three members, authorizing instead
decisions issued by single Board members. This change was estimated to result in a 25
percent increase in productivity at the Board and significantly reduce response time. The
law also (1) eliminated the statutory limit on the number of Board members (previously
67, including the Chairman’ and Vice Chairman); (2) authorizes the use of various
electronic media to conduct hearings; (3) bars the original decision-making member(s)
from reconsideration decisions; (4) provides an exception to docket-order hearings in
cases of severe financial hardship or illness; and (5) requires the Chairman to conform to
the Code of Judicial Ethics of the U.S. Court of Veterans Appeals as that code relates to
partisan political activities.
Another significant legislative accomplishment is Pub. L. No. 103-446, the “Veterans’
Benefits Improvements Act of 1994,” which was actively supported by the Board and the
Department and contains a number of measures affecting the Board. It incorporates
several of the recommendations of the Select Panel on Productivity Improvement
discussed earlier.
Title II of Pub. L. No.1 03-446 restored the practice of pay equity between Board
members and federal ALJs, ended terms for Board members, and instituted performance
standards for members. Until 1990, bothALJs and Board members were paid at the same
level. Beginning in 1991, AU pay was increased by about 20 percent. In addition, since
passage of the Veterans’ Judicial Review Act in 1988, Board members have been subject
to terms of nine years, while AUs were not. The net result was a loss of the most
experienced Board members to the AU ranks –more than 15 percent during the period
from July 1993 through July 1994. Title II sets Board member pay at the same level as
ALJs and eliminates terms. At the same time, the bill requires “recertification” of Board
members at least once every three years under performance standards developed by the
Chairman with the approval of the Secretary. Title II also permits the Chairman to
10
continue to serve ~fter the expiration of his appointment –with the approval of the
Secretary and within certain time limitations –until a successor is appointed.
Pub. L. No. 103-446, title III, in pertinent part, pennits the Board to “screen” appeals
to detennine the adequacy of the record for decision-making purposes or to remand the
case immediately for additional development. Provisions of title III also require the
Secretary to provide expeditious treatment by the Board of any case remanded by the
Court of Veterans Appeals.
Finally, title IV of the new law established the “Veterans’ Claims Adjudication
Commission,” designed to examine and make recommendations concerning the entire
claims-processing system, including the Board. The Commission will be composed of
nine members, only one of whom will be a V A employee. The Commission is required
to issue a preliminary report in November 1995, with a final report due in May 1996.
Claims File Security
One of the most unfortunate situations in recent Board history was disclosed in FY
1994. Board members detected unusual patterns of decision recommendations prepared
by two staff attorneys. In each of these apparently unrelated cases, the attorneys in
question recommended that an unusually high percentage of appeals be remanded to V A
regional offices to obtain essential documents. The reviewing Board members suspected
that the two attorneys were altering documents in or removing records from appellants’
files, thus necessitating the return of the appellants’ claims folders to V A regional offices
for further development.
Investigations undertaken by the V A Office of Inspector General, at BV A’s request,
revealed evidence that the two suspect attorneys had tampered with documents from
some claims files assigned to them for review. One of the attorneys resigned in January
1994 and is still under investigation by the U.S. Attorney’s Office for the District of
Columbia. The second attorney pleaded guilty to a felony charge of unlawful
concealment, removal, and mutilation of government records and, at the end of tJte fiscal
year, was awaiting sentencing in federal court.
After discovering the tampering, the Board initiated a systematic review of the
approximately 1,800 decisions handled by the two attorneys since 1990, to identify those
in which tampering may have occurred. During the course of FY 1995, the Board will
notify all appellants whose cases were handled by the two attorneys and inform them of
the results of the review. In all cases, whether the Board’s review revealed evidence of
tampering or not, appellants and their representatives will be afforded the opportunity to
personally review their records and, if they suspect tampering, to provide information
about missing or altered documents or take other appropriate action. .
Corrective actions available to appellants include the submission of additional or
duplicate evidence, as well as comments or arguments, and, if a final decision was made
11
on an incomplete or altered record, filing a motion for reconsideration. Cases involving
file tampering will be handled in an expedited manner and will be subject to the same
standard of review as applied to cases involving the destruction of official records that
occurred in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri.
While the Board has no indication that any other employees tampered with official
records, the damage done by these two attorneys was considerable. In most instances, the
tampering resulted in further delay in an already too lengthy appeal process. The shortterm
effect on the Board has been substantial in terms of time and costs expended to
investigate and correct this matter and in terms of the perceived loss of integrity of the
Board’s appellate procedures. Long-term effects are not known. However, the more
precise monitoring of appellate records made possible by the FY 1995 upgrade of the
Board’s computerized case tracking system, along with the possible future
implementation of document imaging technology, will reduce or eliminate the likelihood
of any recurrence of this problem.
Because of the expertise of Board members, it was the Board that discovered the
tampering; it was the Board that caught it; and it was the Board that stopped it.
ORGANIZATION OF THE BOARD
The statutory authority for organization of the Board is contained in chapter 71 of title
38 of the United States Code. The Board’s activities are directed by a Chainnan, who is
“directly responsible to the Secretary,” as provided by 38 U.S.C. § 7101(a). The
Chainnan is appointed by the President of the United States with the advice and consent
of the Senate and serves for a tenn of six years. Pursuant to 38 U.S.C. § 7101(a), the
Board is authorized to consist of a Chainnan, a Vice Chainnan, and an unlimited number
of Board members. The
Board is also authorized
by § 7101(a) to have
“sufficient” professional,
administrative, clerical,
and stenographic
personnel as are
necessary to accomplish
its mission. (BV A’s
organization chart is
shown on page 14.)
All members of the
Board, except the
Ch~irman, are appoihted
by the Secretary, with
Pub. L. No.1 03-271 authorizeds ingle Board memberd ecisions. approval of the President,
12
based upon the recommendations of the Chainnan. The fixed tenns of office for Board
members that existed since the enactment of VJRA in 1988 were eliminated by
legislation approved by Congress in FY 1994. This legislation, Pub. L. No. 103-446, also
increased Board member pay to a level comparable to that of Administrative Law Judges.
Prior to the enactment of this law, Board members were the only federal employees at the
GM or GS-15 level that required Presidential approval for appointment. The Chainnan
holds an Executive level position, and the Vice Chainnan and Deputy Vice Chainnan are
members of the Senior Executive Service.
BV A is organized into Professional and Administrative Services. The Professional
Service consists of Board members, staff counsel who support the Board members, staff
medical advisers, and the Chairman’s staff. Since the enactment of Pub. L. No. 103-271,
which was signed into law on July 1, 1994, most decisions of the Board are reviewed and
decided by individual Board members. This is a change from past procedures wherein, as
required by law, three member panels reviewed and decided each appeal. Currently, the
Board is divided into 21 decision-making units (Board sections), each composed ‘of at
least two attorney Board members, one of whom is designated Chief and bears the
supervisory responsibility for the section.
A professional staff of eight or nine attorneys, referred to as staff counsel, are assigned
to each Board section. Staff counsel are graded from GS-9 through GS-14. The Chief
member of a section reviews the section’s caseload and assigns individual appeals to staff
counsel for the preparation of written tentative decisions. These draft decisions are
typically prepared by counsel on individual computer work stations. The counsel return
completed tentative decisions to Board members for review. The Board member
typically will review the record and revise the submission or return it to counsel for
revision. When a decision that is acceptable to the Board member is finalized and signed
by the member, the decision is processed through the Board’s Quality Review section and
then forwarded to the Administrative Service for dispatch.
A staff of medical advisers assist Board members by conducting medical research and
training staff counsel on medical issues. In addition, medical evaluations of a ~ase may
be obtained from the V A Under Secretary for Health, the Anned Forces Institute of
Pathology, or an independent medical expert who is usually a member of the faculty of a
leading medical school.
The Board’s Administrative Service supports the system by facilitating the efficient
processing of appeals. This support includes case management and tracking, docket
control, scheduling of hearings, secretarial and transcription services, as well as liaison
activities with veterans, veterans’ service organizations, Members of Congress and their
staffs, and other interested parties. The Board’s transcription unit, located in Wilkes-
Barre, Pennsylvania, electronically transmits draft decisions, hearing transcripts, and
other documents to the Board’s offices in Washington, DC. .
13

MEMBERS OF THE BOARD OF VETERANS’ APPEALS
The Honorable Jesse Brown administers the oath of office to new Board members.
At the close of FY 1994, the following 57 individuals, 34 of whom are veterans, were
serving as members of the Board of Veterans’ Appeals. No Board member appointments
are awaiting Presidential approval. There are no physicians serving as Board members.
AGUA YO-PERELES, JOAQUIN
ANDREWS, KENNETH R., JR.
ANTHONY, JAMES R.
BAUER, ROGER K. (VICE CHAIRMAN)
BLASINGAME, JACK W.
BRAEUER, WAYNE M.
BROWN, DEREK R.
CALLOW A Y, BETTINA S.
CHEEK, MICHAEL D.
CLARK, HALSTEAD H.
COPELAND, BARBARA B.
CRAGIN, CHARLES L. (CHAIRMAN)
DANNAHER, THOMAS J.
DAY, JONATHAN E.
DONSBACH,JAN
DURKIN, SHANE A.
FLOWERS, FRANK J.
FRANK, RICHARD B.
GICK, GARY L.
GOUGH, JEROME F.
HOGEBOOM, CHARLES E.
HYMAN, BRUCE E.
JOHNSON, JAMES U.
JORDAN, VICKY L.
KANNEE, BRUCE N.
KRENZER, EILEEN M.
LYON, MICHAEL D.
MARTIN, JEFFREY J.
MOEHLMANN,HOLLY
MONROE, JACQUELINE E.
O’NEILL, EUGENE A.
ORMOND, JOHN E. (ACTING)
PELLETIER, RENEE M.
PHILIPP, ROBERT D.
PHILLIPS, NANCY I.
POWELL, URSULA R.
REDDY, WILLIAM J.
RICE, WARREN W., JR.
ROBIN, NANCY R.
RUSSELL, CRAIG P.
SABULSKY, MARY M.
SCHULE, JOHN J.
SCHWARTZ, HOWARD N.
SEERY, EDWARD W.
SENYK, GEORGE R.
SHARP, JANE E. –
SHERMAN, IRIS S.
SHUFELT, GORDON H.
SPICKLER, DAVID C.
STANDEFER, RICHARD B. (DEPUTY
VICE CHAIRMAN)
SULLIV AN, LAWRENCE M.
SULLIV AN, ROBERT E.
SYMANSKI, CHARLES W.
TOBIN, LEO W., III
TUTERA, ALBERT D.
WARNER, SAMUEL W.
WILKINS, STEPHEN L. .
15
SELECTION OF BOARD MEMBERS
Although it is not required by law, all members of the Board are attorneys. For the
first time in many years, no physicians serve as members of the Board. Board members
are selected through a highly competitive process. Each must be completely familiar with the growing body of applicable statutory, regulatory, and judicial authority and must acquire a solid background in the medical and other areas of subject matter expertise necessary to adjudicate the wide variety of claims within the Board’s jurisdiction. With very few exceptions, Board members have been drawn from the ranks of staff counsel to the Board, because the particular expertise necessary to adjudicate appeals for veterans’ benefits in an expeditious manner is most commonly found in this group. Staff counsel generally require from 7 to 10 years of experience before they are considered qualified for consideration as a Board member. The selection process for the limited number of Board member openings is extremely competitive; only the best are selected. The Board also continues to seek individuals outside the Board who have the requisite level of expertise
to provide the efficient, high-quality service that veterans and their dependents deserve.
As selection of Board members is based solely on merit, the political affiliation, if any, of the candidates is never a factor for consideration.
THE ROLE OF THE BVA PHYSICIAN
The Court has held that the Board can no longer base its decisions on its own medical
expertise, including that of a physician serving as a Board member, but must rely upon
“independent” medical evidence on the record in support of the determination reached.
This requires that Board members provide a thorough explanation of all medical
principles relied on, with discussion of and citation to independent authority, such as
medical treatises, texts, journals, and epidemiological studies. In addition, the Board
increasingly has been required to obtain additional medical information and/or expert
opinion on the record from sources within and outside the Department.
Furthennore, Court decisions in the cases of Gilbert v. Derwinski, CQlvin v.
Derwinski, and Hatlestad v. Derwinski have altered the manner in which BV A physicians
are employed in the decision-making process. In the course of his confinnation hearing
in February 1991, the Chainnan stated that he questioned whether the particular expertise
of BV A physicians would be more effectively utilized in the role of an evaluator and
analyst, rather than as an adjudicator. He further indicated that he would examine the
issue in depth if he were confinned and appointed Chainnan. Shortly thereafter, in
Colvin, the Court held that the Board must consider only independent medical evidence
to support its findings rather than provide its own medical judgment as a Board opinion.
The Court has held that the traditional use of physicians as adjudicators, deciding
cases on their own medical expertise, is inappropriate. As a result, BV A utilizes its
physician staff in other capacities, such as providing advice, research, training, and
internal quality review. To provide the maximum flexibility, and in anticipation of
16
Colvin and its progeny, 3-year tern1S of office were recommended for each of the
physician Board members appointed in the initial round of appointments in FY 1991.
Their tern1s expired in July 1994.
After Colvin, BV A physicians were increasingly utilized in the capacity of medical
advisers. They provided expert medical opinions “on the record” in appeals in which
such guidance was required. However, the Court in Austin v. Brown raised serious
questions concerning the fairness and impartiality of the Board’s procedures for utilizing
Board medical adviser opinions. Since announcement IJf Austin, the Board has not
utilized opinions from its medical advisers in adjudicating appeals. At the present time,
the Department is considering a regulatory change which will expressly authorize the
Board, under certain circumstances, to obtain opinions on the record from Department
medical personnel.
Colvin, Austin, and other Court decisions have resulted in a significant increase in time
spent by BV A professional staff in performing legal and medical research. The absence
of medical members within Board sections has increased the responsibility of the attorney
Board members by requiring them to analyze the medical evidence with increased
frequency and sophistication. In addition, the attorney staff must independently
recognize when additional development of the record is warranted, particularly the need
for expert medical opinion. To help meet this need, the resources of the Board’s Research
Center have been greatly expanded. In addition, the role of the BV A staff physician in
the quality review process has also been expanded.
The Board continues to seek advisory medical opinions from V A sources, including
the Under Secretary for Health, from the Armed Forces Institute of Pathology, and from
independent medical experts who usually serve on the faculties of leading medical
schools. In FY 1994, the Board requested 159 opinions from independent medical
experts under 38 U.S.C. § 7109.
The Board and the Veterans Health Administration (VHA) have entered into an
agreement whereby BV A may obtain advisory medical opinion services on a
reimbursable basis from VHA. While BV A has requested approximately 20 opinions
from VHA annually over the past two years, we anticipate that as many as 2,000 opinions
could be requested under the contemplated arrangements.

REVIEW OF ATTORNEYS’ AND AGENTS’ FEE AGREEMENTS
The VJRA required attorneys and agents to file with BV A their fee agreements for
services in connection with a proceeding for veterans’ benefits before VA. It also gave
BV A the authority to review fee agreements on its own motion or upon motion of a party
to the agreement. .
17
In FY 1994, the Board received approximately 280 fee agreements for filing. Most of
the perceived problems concerning fee agreements were handled by correspondence. The
Board issued eleven motions for review of fee agreements for insufficiency in FY 1994.
At the end of the fiscal year, five motions were pending. Three motions had been
withdrawn upon payment to the client of the disputed fee. In three instances, the Board
issued a decision that the attorney could not charge a fee because there had not been a
final decision of the Board concerning the matter for which the attorney was attempting
to charge a fee.
Almost all of the Board’s decisions concerning fee agreements involve agreements
referred by V A regional offices for a determination of whether an attorney is eligible for
payment directly by V A under 38 U.S.C. § 5904(d). In FY 1994, 56 cases were referred
for such decisions. Fifty-five such cases were completed during the fiscal year: 21
ordered payment ‘to the attorney, 25 held that the attorney could not be paid, 1 was
returned to the regional office, and 8 were withdrawn by the parties.
REPRESENT A TION BEFORE THE BOARD
In FY 1994, 87.0 percent of appellants were represented by one of the accredited
service organizations, 4.0 percent were represented by an attorney or agent, and 9.0
percent were not represented. In FY 1993, 87.1 percent were represented by an
accredited service organization, 3.1 percent were represented by an attorney or agent, and
9.8 percent were not represented. (See table on page 38, Part III.)
LIAISON ACTIVITIES
Correspondence and Congressional Liaison Activities
The Board responds directly to requests for infonnation and assistance from veterans,
their representatives, and Members of Congress and their staffs. Most of these- requests
are handled by the Board’s Administrative Service and the Office of the Chainnan. The
Chainnan provided 5,855 written responses to Congressional inquiries in FY 1994. In
addition, the Chainnan responded to correspondence from claimants and other interested
parties addressed to the President, the Secretary, and other government officials.
The continuing increase in decision processing time has resulted in a corresponding
increase in the number of telephone calls and letters from Members of Congress,
appellants, and others. Because of the increasing complexity of the law, as interpreted by
the Court, responses to such inquiries have become far more complex and time
consuming. In some instances, cases must be withdrawn from active appellate
consideration while a response to the inquiry is being prepared. The rapidly ~volving
body of veterans’ law requires continual retraining of Administrative Service employees
who respond to these inquiries.
18
Liaison with Veterans’ Service Organizations
Veterans’ service organizations (VSOs) provide representation for 87 percent of those
filing appeals with the Board. VSOs are critical to the Board’s operations.
Throughout the year, the Chairman made presentations to representatives of numerous
veterans’ service organizations, both at the Board’s offices and at various conventions and training conferences. In early February, for example, he held individual meetings with senior officials of The American Legion, the Disabled American Veterans, the Veterans of Foreign Wars of the United States, and the Paralyzed Veterans of America to discuss the steadily increasing appeal processing time and the Board’s efforts to improve productivity and timeliness through the series of administrative and legislative actions previously described in this report. In addition, the Chairman addressed or participated in
15
conventions and seminars held by VSOs (both national and state) across the country.
Other Liaison Activities
Throughout the year, the Chairman made presentations to the staffs of the Committees
on Veterans’ Affairs of the Senate and House of Representatives; the Subcommittee on
V A, HUD, and Independent Agencies of the Senate Committee on Appropriations; and
individual members of Congress concerning the backlog of appeals and the Board’s
initiatives to increase productivity and improve decision timeliness. Similar
presentations were made to representatives of many veterans’ service organizations. One
of the key elements of these presentations was the proposal to amend title 38 of the
United States Code to permit single Board member decisions. As previously noted, this
proposal was incorporated in Pub. L. No. 103-271, signed by the President on July 1,
1994.
On several occasions during the year, the Chainnan testified before the Subcommittee
on Compensation, Pension, and Insurance of the House Committee on Veterans’ Affairs.
In November 1993, he testified in favor of the single Board member decision-making
legislation. In February 1994, he discussed the impact of judicial review on th~ Board’s
budgetary requirements, the administrative initiatives being undertaken by the Board, and
the legislation supported. In April 1994, he testified for the Department in favor of
provisions which would restore the practice of pay equity between Board members and
Federal administrative law judges (ALJs). As noted above, this proposal was
incorporated in Pub. L. No.1 03-446, signed by the President on November 2, 1994.
PROFESSIONAL TRAINING
Included in the recommendations of the Select Panel on Productivity Improvement for
the Board of Veterans’ Appeals was a recommendation to improve the training and
professional development of staff counsel and Board members. In response, the Board
established a committee, headed by the Vice Chairman, to develop and implement a
19
comprehensive training program for all counsel and Board members. This coordinated
program will provide intensive instruction in a variety of functional areas, including
claims adjudication, veterans’ law education, medical issues, and computer wordprocessing.
Instruction will be provided by subject matter experts from within the
Board’s ranks and from outside sources. A key feature of the program will be attendance
at the Veterans Benefits Administration’s Adjudication Academy in Baltimore, Maryland,
by all attorneys beginning their careers at the Board. As they have in the past, BV A staff
physicians will continue to conduct lectures on a variety of medical topics.
AUTOMATION INITIATIVES
The Board’s on-going automation activities are intended to increase the efficiency of
its operations and thereby offset, to the extent practicable, the adverse effects of judicial
review on BV A productivity and timeliness. In FY 1994, the Board completed office
automation training and the installation of personal computers for all professional and
administrative staff. Prior to this automation project, there was only one Wang terminal
in each of the 21 Board sections. Now all Board counsel have word processing and
electronic reference material available to assist them in producing high quality decisions
in a more efficient manner.
This year saw the BV A computer network grow to over 400 users in Washington, DC,
and the entire staff of 40 employees in the Wilkes-Barre, Pennsylvania, transcription unit.
In addition to hearing transcripts and rating decisions, the Wilkes-Barre office also
transcribes tapes for nine regional offices and electronically transmits the completed work
directly to the regional offices.
In March 1994, all Board decisions issued in calendar years 1992 and 1993 were
compiled on a single CD-ROM (Compact Disc -Read Only Memory). The entire text of
all decisions issued in those years, along with an index to those decisions, was included
on the CD-ROM. This product allows researchers to search all 1992 and 1993 decisions,
separately or simultaneously, for specific topics and to display or print the text of
decisions matching the search criteria. This capability represents an enormous potential
reduction of research time for attorneys preparing decision recommendations, appeal
representatives, and others.
The Board also designed and made available another important computer research tool,
the Veterans’ Benefits Law Index. This index was created to facilitate legal research and
assist with the preparation of Board decisions. The index includes references to
precedent decisions and opinions of the U.S. Court of Veterans Appeals, U.S. Court of
Appeals for the Federal Circuit, U.S. Supreme Court, and V A Office of the General
Counsel. It is available not only to Board employees and veterans’ service organization
representatives connected through the Board’s computer network, but has been distriobuted
by the Veterans Benefits Administration’s Compensation and Pension Service to
adjudicators in all 58 V A regional offices. This asset allows Board counsel, members,
20
and others to keep abreast of the
rapidly expanding and changing
body of veterans’ benefit law.
~
During FY 1994, several research
tools were installed on the BV A
computer network to assist staff
counsel and Board members in
conducting their increasingly
complex research. These tools
include an electronic version of title
38 of the Code of Federal
Regulations and an index of changes
to these regulations, which
essentially lists sections affected by
proposed and final rules printed in
the Federal Register. In addition, an
index of precedent opinions of the
office of .It he VA General Counsel TTLie text 0i f aI I ca Ienu-a’r year 1992 and 1993
has been Installed. Computer access -‘ 0 0 Of, hf, . I CDROII .ueClSlons are aval a e on a Sing e -lYI.
has also been made available, on a
limited basis at the present time, to WESTLA W, which affords access to the complete
texts of opinions of the U.S. Court of Veterans Appeals, the U.S. Courts of Appeal, and
the U.S. Supreme Court. The Board plans to make WESTLA W available to all staff
counsel and Board members in FY 1995.
Another important development has been a broadened exchange of information
between the Board, the Veterans Benefit Administration (VBA), and other V A operating
elements. Of particular note is the Board’s computer access to VBA’s policy and
procedures directives, critical tools used throughout the V A claims adjudication system.
The Board, along with VB A, the Veterans Health Administration, and the National
Cemetery System, is also participating in the Master Veterans’ Record Project. This pilot
program allows computer searches of V A facility data bases to determine certain
information, such as periods of hospitalization or treatment, critical to adjudicating
claims.
Direct access to the Board’s computerized case tracking system was made available to
VSOs and V A Congressional liaison staffs via telecommunications links in a continuing
effort to provide information access to those who need it. The successor system to the
case tracking system is projected to become fully operational during the second quarter of
FY 1995. Also in FY 1995, the Board anticipates posting information, such as that
contained on the decision CD-ROM, on computer facilities accessible via Internet. .
Preparation of tentative BV A decisions and recurring administrative documents has
been facilitated by the expanded use of customized word processing templates.
21
Administrative efficiency and timeliness have been improved through the use of these
templates by allowing users to concentrate on document substance rather than form.
Basic word processing training, begun in FY 1993 for the Board’s administrative,
professional, and transcription services personnel (located in Wilkes-Barre,
Pennsylvania), was completed during FY 1994. In addition to basic word processing
classes, instruction on BV A-specific document preparation procedures was conducted.
Training of hearing-impaired employees was facilitated by two non-VA interpreters hired
by the Board to translate lessons through the use of sign language.
The Board also initiated a word processing and CD-ROM (Compact Disc -Read Only
Memory) data search training program for VSO appeals representatives. In May 1994,
twelve Disabled American Veterans (DA V) service officers and secretaries took part in
the inaugural class, which was tailored to meet the specific computer literacy
requirements identified by DA V. Instruction included basic word processing techniques
as well as procedures for the use of a BV A-designed template that facilitates Drief
preparation by VSO service officers. Direct access to the Board’s 1992 and 1993
decisions stored on CD-ROM was established via a shared computer network.
Instruction on CD-ROM data search and retrieval methods, as well as on the use of other
on-line research materials, was also provided to the VSO representatives.
The Board will continue to offer custom-tailored training to all VSOs having
compatible computer hardware whose service representatives are co-located with the
Board in the Board’s Washington, DC, office building.
CUSTOMER SERVICE
The Board has been an active participant in the Department’s aggressive efforts to
improve the quality of its service to customers. In March 1994, the first of two focus
group meetings was held with representatives from major veterans’ service organizations.
Therour primary areas of concern identified by the VSO participants were: decision
timeliness and quality, courteous treatment of appellants, and communications. Decision
timeliness and quality have long been the criteria by which the Board measured its
performance and are areas that received intense scrutiny throughout the fiscal year. The
legislative and administrative initiatives discussed elsewhere in this report focus mainly
on these two areas. Courteous and respectful treatment of appellants is the cornerstone of
the Board’s customer service program. In keeping with the department’s emphasis on
courtesy and caring, heightened awareness of this basic requirement has been
incorporated into all facets of the Board’s operations. The VSO representatives’ emphasis
on the need to improve and expand the Board’s communications activities provided a new
customer service avenue for the Board to pursue.
At the recommendation of the customer service focus group, the Board surveyed more
than 1,000 appellants who had received Board decisions within the preceding three
22
months. Survey responses echoed the focus group’s emphasis on timeliness,
communications, courtesy, and quality as the major areas of concern affecting customer
satisfaction. The Board then developed customer satisfaction standards based on the
results of the survey and the focus group’s initial meeting.
A second meeting of the Board’s customer service focus group refined the Board’s
customer service standards and identified specific areas where improved communication
between the Board and appellants was needed most. An immediate result of these focus
group meetings was the initiation of a project to revise much of the Board’s written
communications with appellants. The revisions make the Board’s routine correspondence
less formal, less legalistic, and more “customer friendly.”
In September 1994, the Board published a BV A Customer Service Standards brochure.
This brochure not only fulfills the requirements of the President’s Executive Order 12862,
“Setting Customer Service Standards,” but provides appellants with a clear statement of
the Board’s commitment to improve customer service. Also in September, the Board
began an on-going customer service training program. In addition to introducing the
Board’s customer service standards to front-line employees, the initial training sessions
focused on improved customer relations in direct contact situations, particularly
telephonic contact between employees and appellants.
A comprehensive brochure explaining the entire appeal process was nearly complete at
the end of FY 1994. When distributed in FY 1995, this guide will provide, for the first
time, a single-document source of information on how to file an appeal, what the appeals
process involves, procedural options available to appellants, how the Board operates, and
what kind of communication and product appellants can expect from the Board.
In FY 1995, after publishing the new guide for appellants 8.nd allowing sufficient time
to permit a meaningful assessment of the Board’s other customer satisfaction
improvement initiatives, the Board will again survey its customers to evaluate progress to
date and to determine appropriate efforts to further improve customer satisfaction. The
Board is committed to providing service equal to or better than the best availa_ble from
comparable organizations inside and outside of government.
TOTAL QUALITY MANAGEMENT (TQM)
Numerous recommendations of the Board’s TQM team were implemented during FY
1994, including the installation of telefacsimile machines in each of the five Control
Divisions. This action alone has greatly increased the efficiency with which
administrative services personnel and V A field offices communicate. Access to the
Board’s computerized case tracking system, provided to VSO appeals representatives and
field office personnel during FY 1994, is also an example of how the Board’s gras~oots
TQM effort has benefited the Board and the Board’s ability to serve its customers better.
23
WORLD WAR II 50th ANNIVERSARY COMMEMORATIONS
In January 1994, the United States 50th Anniversary of World War II Commemoration
Committee designated BV A as an official World War II Commemorative Organization.
Eighteen Board employees volunteered to form and serve on a committee to plan and
conduct activities to honor and thank America’s World War II veterans and to increase
Board employees’ understanding of the sacrifices and accomplishments of those veterans.
To maintain a continuous awareness of the magnitude and intensity of America’s
involvement in the war, the Board established a “This Week in World War II” display on
each floor of the Board’s Washington, DC, offices. This display has provided a week-byweek
chronicle of significant campaigns, battles, and home front activities.
From September 7 through the end of the fiscal year, the Board exhibited the “BV A
World War II Hall of Fame” in the Board’s Lafayette Building lobby and in BV A
common areas. The exhibit included World War II era photographs of several current
BV A employees taken during their WW II military service. Photographs of employees’
family members who served in uniform during World War II or who served on the home
front were also featured. The exhibit provided fact sheets and book marks describing
World War II campaigns, battles, and home front programs for visitors to collect.
The Hall of Fame Exhibit represented a grassroots effort by Board employees to
demonstrate in a very personal way that every claims folder handled by Board employees
is a representation of the life of a real person, not just a collection of paper. The display
also served as a reminder that World War II, like all wars, was fought by everyday people
who are now the Board’s customers.
~D5
(~-‘!”:.£.
tU
I!.j ~~
The B VA “ww II Hall ofF orne” was one of several activities conducted
during FY 1994 to honor veterans of World War II.
24
PART II
REMARKS OF THE CHAIRMAN
AT THE TffiRD JUDICIAL CONFERENCE
OF THE UNITED STATES COURT OF VETERANS APPEALS
OCTOBER 1994
The Chairman was invited by the Court to address the Third Judicial Conference of the
United States Court of Veterans Appeals on October 17, 1994. During his address to
conference participants, the Chairman discussed recent changes that have taken place at
the Board, particularly those that occurred during fiscal year 1994. Portions of the
Chairman’s remarks are discussed in greater detail elsewhere in this report, but tpe full
text of the Chairman’s presentation, entitled “The Endless Becoming,” is presented below.
It provides a useful summary of the dynamic events that characterized fiscal year 1994,
vis a vis significant judicial decisions, legislative accomplishments, and Board-initiated
administrative actions.
INTRODUCTION
Thank you, Chief Judge Nebeker and Judges of the Court of Veterans Appeals. I have
c~osen as my theme a quotation from Justice Benjamin Cardozo that, in my opinion,
aptly describes the condition of the Board of Veterans’ Appeals since the enactment of the
Veterans’ Judicial Review Act in 1988: “Nothing is stable. Nothing absolute. All is
fluid and changeable. There is an endless ‘becoming.’ “
As you know, the enactment of the Veterans’ Judicial Review Act (VJRA) of 1988
ch~ged the static, almost unchanging world in which the Board formerly existed into a
fluid, changeable environment in which there is the “endless becoming” of which Justice
Cardozo wrote. As Secretary Brown noted today, this new environment is markedly
better than the old in many ways. As Congress intended, the checks and balances of
independent external judicial review of the Board’s decisions have provided greater
integrity and .accountability to the V A adjudication system by insuring that V A conforms
to its own rules. It has forced V A to more thoroughly explain its decisions. It has made
V A abandon old practices and replace them with new and unfamiliar ones. As Judge
Kramer succinctly put it in Stillwell v. Brown, “[T]he evolution of V A benefits law since
the creation of this Court. ..has often resulted in new, different, or more stringent
requirements for adjudication.” The nascent body of veterans’ law that this court is in the
process of creating daily has, at the same time, precipitated the Board’s “endless
becoming.” .
25
SHORT-TERM BOARD INITIATIVES
Unfortunately, while appellants are benefiting from more detailed, well-reasoned, and
consistent decisions, the process of arriving at those decisions has become much more
complex, legalistic, and, necessarily, more time-consuming. Nevertheless, the Board’s
statutory duty to render decisions in a timely manner remains unchanged. To meet the
challenge, in January 1994, I presented to Secretary Brown short- and long-term
procedural and administrative measures to improve the Board’s productivity and
timeliness. The measures, which were implemented this year, have also contributed to
the Board’s “endless becoming.”
Limited Certified List Preparation
For example, ‘in February 1994, the Secretary approved my suggestion to limit the
preparation of the “Certified List” of the evidence considered in a BV A decision only to
those decisions that have been appealed to the Court, rather than to continue to require the
Board to prepare a “Certified List” for every final decision of the Board, whether it was
appealed or not. We worked out a cooperative arrangement with the Office of the
General Counsel that allows us to create this “Certified List” in a timely manner for use
when a BV A decision is appealed, thus meeting the needs of the Court and the Secretary
while providing better service to veterans.
Advance Docketing
Beginning on the first of February this year, the Board established a new procedure for
docketing appeals. We were able to implement the new procedure with the cooperation
of the Veterans Benefits Administration and the agencies of original jurisdiction within
the Department. The new docketing procedure permits the Board to enter an appeal on
our docket while the veteran’s claims file remains at the originating agency. This system
has several advantages for veterans.
Before February 1994, the Board’s docketing procedure was based upon the physical
receipt of the veteran’s claims file by the Board. The originating agency transferred the
file to the Board when it had completed its action in the appeal. This worked well when a
veteran’s records would be at the Board for a relatively short period, most of which was
used in the active review and processing of the appeal.
It was no longer a good system when a veteran’s records would be shelved for many
months or even years in case storage waiting for the Board to consider and decide the
appeal. It was also not a good system once the Board’s practice of conducting some
hearings at V A regional offices was made statutory by the VJRA, because, logically, the
veteran’s file remained at the regional office until after the Board’s hearing was held there.
This gave these appellants later docket numbers because the veteran who asked for a
hearing before the Board at a regional office, rather than in Washington, DC, did not take
his or her place on the Board’s docket until after the hearing was held. In contrast, the
26
appeals in which veterans had not requested a BV A hearing at a regional office were
placed on the Board’s docket without delay when the originating agency finished its
action on the appeal. The significance of the docket number of the appeal rests in the
statutory requirement that the Board consider and decide each case in regular order
according to its place on the docket. As the Board’s backlog grew, the disadvantage of
the old docketing system for veterans requesting a BV A hearing at a regional office was
obvious.
We now docket appeals after the appellant has completed his or her appeal by filing a
V AFonn 9, or its equivalent, in response to the statement of the case. Each VA regional
office photocopies the appeal when it is received and sends a batch of appeals to the
Board for docketing approximately once per week.
This improved docketing procedure permits the originating agency to continue to have
access to the file, and permits appellants to obtain a place on the Board’s docket at the
earliest opportunity, which, in turn, permits an individual to have his or her appeal
considered and decided by the Board at the earliest possible opportunity.
Temporary Suspension of Hearings
Another initiative implemented this year is the delay, beginning May 1, 1994, in the
scheduling of new hearings until a time proximate to when the Board will decide the
claim. As many of you remember, once appellants became aware of their new statutory
right to have a BY A hearing at a regional office, many of them chose to avail themselves
of this opportunity rather than travel to Washington, at their own expense, to attend a
BY A hearing. In fiscal year 1990, the Board held 440 hearings in the field and 1,244
hearings in Washington. In fiscal year 1993, the Board held 3,533 hearings in the field
and 1,172 hearings in Washington.
Once we had implemented our new docketing procedures so that appellants could
obtain a place on the Board’s docket before their BV A hearing was held in the field, it no
longer made sense to take Board members away from considering and decid~ng appeals
in their offices to travel to hold hearings in appeals that would not be considered and
decided for many months or years. In any appeal, it is preferable to hold the hearing as
close as possible to the time of the actual decision in the appeal. The demeanor of the
witnesses is much fresher in the Board member’s memory. The evidence presented at the
hearing is ~e most up-to-date. The Board member who held the hearing, and who is
required by statute to participate in the decision, is most likely still a Board member.
This last consideration has become even more important lately, as so many of our Board
members, who have left the Board for better pay and conditions of employment as
Administrative Law Judges, may, by the time the case is ready to be decided, no longer
be available to participate in the decision, even though they conducted the hearing in that
case. .
27
Consequently, we decided to restructure our process of scheduling hearings, both in
Washington and at the regional offices, to emphasize scheduling hearings proximate to
the decision-making in the appeal. We stopped scheduling hearings after April 30, 1994,
until the appeals are ready for the Board’s review. We have held a few hearings in
Washington in appeals that were ready for the Board’s review, and we anticipate that we
will begin to hold hearings at regional offices early in calendar year 1995.
Fewer Collateral Assignments
In addition, we have reduced some of the collateral duties of Board members to
maximize the time they spend in consideration of appeals. After meeting our labormanagement
obligations, I have implemented a revised performance appraisal system for
staff counsel to encourage improved productivity. I have altered the format of our
decisions to make them less time-consuming to produce by reducing the detailed
procedural history of the appeal in the decisions and simplifying the preparatio~ of
remand decisions. I have limited the quality review process solely to substantive matters,
to permit decisions that are substantively correct to be released sooner. I am continuing
to review staffing effectiveness to apply the most resources possible to direct decision
production without impairing the infrastructure of the Board. I am continuing to seek
innovations in case assignment procedures to make the most efficient use of our attorney
and Board member time. And I am continuing to seek incentive awards for BV A
employees to encourage innovation and resourcefulness wherever possible.
LONG-TERM BOARD INITIATIVES
In February 1994, I advised the Secretary that, while the administrative initiatives
implemented by BV A, in the aggregate, will help improve productivity and response
time, they would not restore these traditional measures of organizational effectiveness to
historic levels. Long-term measures must be developed that would, to the extent possible
within this new legal environment, address the underlying causes of the backlog.
The Select Panel on Productivity Improvement
Accordingly, I suggested that the Secretary establish a Select Panel charged with
exploring new approaches that would enable us to fundamentally redefine the way BV A
operates and develop and consider any and all changes that may enable the Board to more
effectively meet the. challenges posed by the current adjudication and appellate
environment. Given the experience of the Blue Ribbon Panel, which was convened last
year to deal with a similar problem in the Veterans Benefits Administration, I thought
that such intensive, concentrated effort would provide significant insight into what the
Board should be “becoming.” .
In response, in March 1994, the Secretary chartered the Select Panel on Productivity
Improvement at the Board of Veterans’ Appeals. The Panel was chaired by Mr. Guy
28
McMichael, the Chainnan of the Board of Contract Appeals, and included the Under
Secretary for Benefits and representatives from the leading veterans’ service
organizations, the General Counsel’s office and the Board. It was charged with
“conduct[ing] a systematic review of the Board of Veterans’ Appeals and its relationship
with other Departmental elements, and mak[ing] recommendations regarding the mission,
structure and operations of the Board that will result in more timely processing of
claimants’ appeals.”
The Panel explored a variety of approaches and presented 12 specific
recommendations to the Secretary in June 1994. The recommendations, which were
subsequently approved by the Secretary, reflected a consensus, if not unanimity, of the
group. At least in part, the recommendations involved not only the Board, but other
elements of the Department. We at the Board are now in the process of implementing
each of these recommendations.
First, the Panel recommended that the Department revise its timeliness measutement
system to address the claimants’ real concern –the total time from the filing of a claim to
the receipt of a final VA decision. The Board has begun to implement such a new
timeliness measure, in addition to others that address budgetary and future planning
needs.
The Panel also advised that the Veterans Benefits Administration (VBA) continue its
aggressive efforts to implement the recommendations of the Blue Ribbon Panel that, in
1993, examined the problems causing delay in the adjudication process at the Regional
Office (RO) level. The Panel stressed that VBA should continue to give a high priority to
its efforts to improve the development of evidence at the RO, which would ultimately
reduce the number of cases remanded to the RO by the Board for needed development.
In addition, the Panel counseled that expedited treatment be afforded to cases that have
been remanded to the RO by the Board. The Under Secretary for Benefits directed that
this latter measure be implemented immediately.
The Panel also recommended that the Board be granted the authority to Rerforrn an
initial review or “prescreening” of appeals in advance of the time when that case would
ordinarily be considered and decided in docket order. This procedure would enable the
Board to discern any deficiencies in the record to be identified and corrected at the
earliest possible time when the case was still awaiting final consideration on the merits
based on i~s place on the docket. Language amending 38 V.S.C. § 7107 to specifically
authorize such prescreening procedures is included in legislation which has been enacted
by Congress and is currently being considered by the President. [Note: On November 2,
1994, the President signed this legislation into law as Pub. L. No.1 03-446, the
“Veterans’ Benefits Improvements Act of 1994. “J
The Panel’s recommendations also included providing better and more comprehensive
training and performance measurement for BV A staff counsel; modifying the Form 9 to
encourage appellant consultation with a service representative; seeking legislation to
29
increase hearing options by authorizing the conduct of BV A hearings, at the claimant’s
option, by a RO official acting as an agent for the Board; exploring the possibility of
expanding the geographic locations at which hearings may be held by use of
teleconferencing; improving the training and methods of evaluating performance of staff
counsel; increased use of technology, including a pilot project employing document
imaging, as well as the expanded use of CD-ROM and other on-line technology; and
resolving attrition problems at the Board resulting from the loss of pay equity between
ALJs and Board members and the imposition of terms on the Board member position.
In my opinion, the most interesting recommendations of the Panel focused on
redefining the Board’s role in the VA benefits adjudication system. The Panel concluded
that the Department should increase individual accountability in the appellate
adjudication process to insure the highest quality consideration of a claim’s merit and to
improve timeliness. It recommended that the Secretary promulgate regulations granting
the Board complete authority to develop, consider and dispose of an appeal once the
substantive appeal (or “Form 9”) is filed. This represents a significant change from the
current procedure for dealing with cases in which the record is insufficient for appellate
adjudication on the merits, which generally requires that the Board must remand such
cases to the agency of original jurisdiction, which is charged with developing the record
and then re-adjudicating the claim.
The Panel suggested that the new procedure, which would permit the Board to directly
obtain evidence or otherwise develop the claim without the necessity of remanding the
case to the RO for needed development and re-adjudication, be perfected in a trial or pilot
program. Claimants would have the ability to “opt out” of the revised system and
continue to have their appeals processed in the current manner.
While the Panel’s recommendation is a good one -one which meri~s and will receive
thorough exploration in a pilot project -it only partially addresses the larger question of
what the Board is or should be “becoming.”
A JUDICIAL HYBRID
The Board is now a judicial hybrid –in part, a tribunal of original jurisdiction, which
develops the record and affords a case de novo review, and, in part, an appellate body,
charged with reviewing the correctness of the decision of the agency of original
jurisdiction based on the application of the law to the facts, as contained in the record on
appeal. The broader question, one which I will return to later, is what should the Board
become in the era of judicial review?
Recent legislation has helped address this issue. .
Since its inception more than 60 years ago, the Board has made decisions through
three-member panels composed of lawyers and physicians–panels which have reflected
30
the make-up of the rating boards at the Regional Offices. As we know, VJRA has
fundamentally altered the way we can make decisions at the Board. Not only did the
1988 law require articulation of the “reasons and bases” for our decisions, but our
reviewing courts are requiring decisions that look more like judicial opinions than before.
With the Colvin decision in 1991, it became clear that we could no longer employ our
physician members to do what they had historically done: apply their own knowledge of
and experience in medicine to the appeals before us.
Recognizing this change, Secretary Brown, in concert with the Board and the
Congressional Veterans’ Committees, worked diligently and effectively for legislation
which has fundamentally altered the decision-making process at the Board. On July 1,
the President signed Pub. L. No. 103-271, which has, for our purposes, two key features:
it empowers the Chairman to assign cases to individual Board members and it removes
the ceiling on the number of Board members.
.
BOARD OF VETERANS’ APPEALS ADMINISTRATIVE PROCEDURES
IMPROVEMENT ACT
This new law speaks to two key issues of “becoming” at the Board
First, in authorizing single-member decisions, the new law recognizes the judicial
nature of the Board’s decisions. Once again, the question as to the precise judicial nature
of the Board arises– is it a trial court, an appellate court, or some new admixture? –but
there can no longer be a question that what we do is render judicial decisions. We
examine the record. We may look at more than the original decision-makers looked at.
But we will make our decisions in classic judicial manner: applying the law as we
understand it as lawyers to the facts which are before us.
For good or ill, the days–if there were in fact such days–of “rough justice” at the
Board are gone. The justice we render will be supported by legal decisions of skilled
individuals unafraid to subject their judicial skills to the scrutiny of the VeteraI)s Court,
the Federal Circuit and the Supreme Court. .It is a result which is unconditionally good
for veterans and their families.
Second, by removing the limit on the number of Board members–67, counting the
Chairman and Vice Chairman–the Congress has given the Secretary the flexibility to deal
with potential reorganization at the Board. As I speak to you today, we do not know
what, if any, reorganization may be needed. We are, after all, still “becoming.” But, in
my view, the Congress has acted wisely in leaving that option to those who manage this
crucial part of the veterans’ system.
31
ADMINISTRATIVE LAW JUDGE PAY COMPARABILITY
In addition to the changed nature of the Board’s decision-making process, the Board
has been facing, for the past several years, a mounting crisis: at the time when we need
experienced decision-makers most, we were losing them to the ranks of administrative
law judges, primarily at the Social Security Administration.
As many of you know, the work of a Board member and the work of an ALl at Social
Security are similar in many ways. Until 1988, the security and compensation of the two
positions were about the same. In 1988, the VlRA established, for the first time, nineyear
terms for Board members, while ALls remained “career absolute.” Then, in 1991,
Congress created, for the first time, a substantial gap between the compensation of Board
members and ALls. And as the Social Security Administration knew, Board members
were extraordinarily well qualified for ALl positions that required strong backgrounds in
law and medicine.
The result was predictable. In July 1993, there were 55 lawyer-members at the Board.
Over the next 15 months, the Board lost nine of them to the Social Security
Administration. The vast majority of the remainder were either on the register to become
ALJs or were in the process of completing their applications. We faced a “brain drain” of
enormous proportion.
Once again, however, the Secretary, in concert with the Board, the BV A Professional
Association, the veterans’ services organizations and the Congressional Veterans’
Committees, worked with extraordinary dedication to produce a pay equity bill which
will, we think, help us retain the best and the brightest for the Board.
The pay gap is closed. Tenns are extinct. A reasonable system of performance
evaluation will soon be in place.
We were in danger of “becoming” the farm team for Social Security. I think that now
the Board will not only inspire the loyalty that made the losses to Social Se.curity so
painful, but it will become a career goal for a new generation of bright, caring lawyers.
That is a result unconditionally good for veterans and their families.
A JUDICIAL BECOMING
The Board is also “becoming” in the judicial arena.
Several years ago, when the Court was still in its nascent state, Chief Judge Nebeker
addressed the Board at one of its quarterly luncheons. He presciently noted that in the
first few years of its operation, the Court would establish its “footprints in the sand,”
those series of landmark decisions that would provide the pathways of its future
jurisprudence. While the Court’s trailblazing is hardly concluded, its “footprints” in many
32
important areas are now well established. At times, the Court has “walked the cat
backwards,” to borrow a phrase from Judge Holdaway, on its own volition and redefined
its direction. On other occasions, the Court of Appeals for the Federal Circuit’s
“footprints” have changed the course, as, for example, in Smith and Mayer. The United
States Supreme Court will directly enter the new judicial environment in its consideration
of the Gardner case this term. In short, we see that the judicial review process
established by the VJRA is’ working and is continuing to evolve. It too is “becoming.”
In the past year, the Court has changed the Board’s course in several respects. In
Grivois, this Court suggested that V A should be more attentive to the threshold issue of
whether a claim is well-grounded and thereby avoid adjudicating implausible claims at
the expense of delaying well-grounded claims. In Similes, the Court adopted a more
expansive view of the Board’s jurisdiction to review certain determinations of the
Veterans Health Administration than historically had been the Board’s view. In
Trammell, the Court examined the Board’s long-standing practice of forwarding copies of
Board decisions to the veterans’ service organizations by “flat mail” –i.e., internal mail —
and concluded that the practice did not conform to the statutory requirement that
decisions be “mailed” –i.e., by U.S. Mail –to the representative. Each of these
decisions has resulted in changes in the Board’s adjudicative and administrative practices.
MEDICAL OPINIONS, AUSTIN v: BROWN
The Court’s decision in Austin v. Brown has had the greatest impact on the Board’s
“becoming” in the past year. Prior to enactment of the Veterans’ Judicial Review’ Act,
there were relatively few constraints on how BV A utilized the expertise of its staff
physicians. Physicians were used interchangeably as both decision-makers and providers
of expert advisory opinions, as well as sources of medical training for BV A legal staff.
The Court’s decisions in Gilbert, Murphy, and Colvin significantly altered the role of the
BV A physician. Prior to these decisions, Board medical adviser opinions were not
incorporated into appellate decisions. In June 1991, I issued Chairman’s Memorandum
01:91-21 which directed, in pertinent part, that all opinions from any physician at the
Board be reduced to writing and added to the record and that Board physician opinions
must be appropriately discussed in the decision, to the same extent as any other item of
relevant evidence. However, the Court in Austin raised serious questions concerning the
fairness and impartiality of the Board’s procedures for utilizing Board medical adviser
opinions. At this time, the Department is considering a regulatory change which will
expressly authorize the Board to obtain opinions on the record from its own staff medical
advisers. The Board is also looking to sources outside BV A to meet its needs for expert
medical opinions.
Traditionally, the Board turned to the Veterans Health Administration, the Anned
Forces Institute of Pathology and selected medical schools as our sources of” such
opinions. Of these three sources, selected medical schools have been used to obtain the
vast majority of BV A’s outside expert medical opinions. Unfortunately, the Board has
33
been unable to consistently obtain timely and responsive advisory opinions from this
group of providers.
BV A and the Veterans Health Administration (VHA) have entered into an agreement
whereby BV A may obtain advisory medical opinion services on a reimbursable basis
from VHA. While BV A has requested approximately 20 opinions from VHA annually
over the past two years, we anticipate that as many as 2,000 opinions could be requested
under the contemplated arrangements. These opinions will be prepared by physicians
employed by or under the direction of VHA. We believe that such an arrangement will
provide a timely alternative to the principal option currently available when a medical
question arises in the course of the BV A appeal adjudication process, i.e., remanding an
appeal to the AOJ in order to schedule a medical exam at a nearby V A medical center to
obtain a medical opinion on an issue in question.
We have explored what the Board is becoming through changes in administrative
procedure, legislation, and judicial precedent. I think we can all agree that the entire
veterans’ benefits adjudication system is now fundamentally different than it was prior to
judicial review and continues to change on almost a daily basis. Although these systemic
changes have resulted in better decisions, a lengthier processing time appears to be a
unwanted consequence of the profound alteration in the way V A must do business.
However, it must be remembered that this is a new era for which realistic expectations,
not only of timeliness, but of the role of the Board of Veterans’ Appeals in the veterans’
benefits adjudication process, have yet to be defined.
THE BOARD’S ROLE IN THE JUDICIAL REVIEW ERA
Once again, I direct your attention to the larger question that remains unanswered —
what is the proper role of the Board of Veterans’ Appeals in the era of judicial review?
The VJRA and the decisions of the Court have greatly changed the Board’s legal analysis
and decisional product. Nevertheless, the current role of the Board appears to have
remained relatively unchanged from the time that BV A was the “court of last reso_rt” for a
veteran’s appeal.
At this point in time, in terms most familiar to lawyers, the Board remains a curious
hybrid. It is, in part, an appellate tribunal, reviewing the adequacy of the decision of the
originating agency, and at the same time, in part, a trial court, providing a form of de
novo review of the original claim. This construct served the Board well at a time when it
was the “court of last resort” in the system for adjudication of entitlement to veterans’
benefits. It served to provide the veteran with an additional opportunity to develop
evidence that would support his or her claim, as well as another opportunity for the
adjudication of the case by a panel of experts that had not previously considered the
claim. .
34
However, under this system, the Board also functions as an appellate body –the
development of the record is left to the agency of original jurisdiction and, absent a
specific waiver of consideration by the originating agency, the claim generally must be
re-adjudicated by the originating agency before it can be considered on appeal by the
Board. This adds considerable delay to the appellate process. For example, a single
remand, on the average, adds almost two years to the total time it takes to finally decide.an
appeal.
This hybrid also results in some uncertainty as to the respective obligations of the
Board and the originating agencies, the V A, the Courts, and the veterans we serve.
Moreover, while its procedural requirements provide an individual veteran the
opportunity to have “another bite of the apple,” by having his or her claim re-reviewed by
the agency of original jurisdiction, the aggregate effect is to directly compromise the
timeliness with which all veterans receive a final decision in their claims. I note that in
the past fiscal year, we have dismissed the claims of 403 veterans who have died while
waiting for a final decision on their claim. I believe we all agree that this is intolerable
and that, at some point, justice delayed becomes justice denied. I believe that we are
certainly close to that point.
Will veterans be better served by a fundamental change, by making the Board either
purely a tribunal of original jurisdiction or purely an appellate body? The
recommendation of the Select Panel to test on a pilot basis the development of the record
directly by the Board provides us the opportunity to experiment with one of these
modalities, at least in the development of evidence. It does not clearly answer the basic
question of the proper role of the Board in the new age of judicial review. This is a
question which, in my judgment, has and will continue to recur in the legislative and
judicial arenas.
In order to make the system work, we must, at some time soon, decide what we want
the Board to become: .
Should the Board remain as it was envisioned prior to judicial review? S_hould the
Board serve as a pure administrative appellate body, deciding cases (for the most part)
solely on the record received from the agency of original jurisdiction? Or should the
Board be structured as a true intermediate administrative tribunal, affording the veteran
de novo consideration of fact and law and .directing development for its own independent
review, without referral back to the originating agency? Would changing the Board to
either a pure appellate tribunal or a true intermediate level trial court result in a more
efficient, more timely appellate adjudication process without curtailment of a claimant’s
access to the system or to entitlements?
How can we continue to be fair to veterans, provide an adequate record for judicial
review, and still cut down on the administrative overhead and further stem the increase in
the amount of time involved in decision-making? Can we expedite the process without
any real compromise of a veteran’s rights?
35
These are difficult challenges. But they will be met, because they must be met.
Because, despite our endless becoming, our goal remains unchanged –to provide justice
to our nation’s veterans and their families, and in the timely manner that the law and
fundamental notions of fairness require. Let me assure you, we at the Board and the
Department of Veterans Affairs are resilient. As one author observed,
Manifestly judicial refonn is no sport for the short-winded or for lawyers
who are afraid of temporary defeat. Rather must we recall the sound
advice given by General Jan Smuts to the students at Oxford: “When
enlisted in a good cause, never surrender, for you can never tell what
morning reinforcements in flashing armor will come marching over the
hilltop.”
If you are very, very quiet, you may hear them coming. Thank you very much.
36
PART III
During FY 1994 BV A produced a total of 22,045 decisions. This represents a 16.5
percent reduction from FY 1993, when 26,400 appellate decisions were produced. The
reduction is largely attributable to the Board’s implementation of precedent decisions of
the Court. For example, in FY 1994, 48 percent of the cases were remanded to V A
regional offices, compared with 44 percent in FY 1993. A breakdown of the disposition
of the Board’s decisions by category of appeal is provided below.
Category Total Allowed Remanded Denied Other
4979 956
240 111
103
18
441
91
104
68
49
16
85
18380
963
278
29
1094
240
409
210
197
34
211
3394
80
33
0
113
7
70
63
68
2
32
9051
532
93
9
415
109
201
76
74
13
69
49
2
125
33
34
3
6
3
25
Disability compensation
Disability pension
Medical
Insurance
Death
Training
Waivers
Loan guaranty
Reconsiderations
Charactero f discharge
Miscellaneous
Totals 22045 3862 10642 6194 1347
Days
Annellate ProcessingC ategories FY 1993 FY 1994
Notice of Disagreement to Statement of the Case 66 70
Statemenot f the Caset o SubstantiveA ppeal 62 59
Substantive Appeal to the BV A 215 244
Processing Time through the BV A 246 359
Average
Remand Time Factor ~ 1.Q1
Total Processing Time All Categories 659 839
37
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00 “f 10 t– -or) 00 -0\ 0 0 f’) t– t–
-0 ~ r-.: 00 -0 0 -0 0 r-.: r-.: 00 0 ..t
<“8<“8-<“8– <“8-
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r–.tCOM–.t–r-OO -.t\O
r—-..t t N –.t- – CO 11″\ -co
,0 ,0 ,0 ,0 ,0 ~ ,0 ~ ~ ~ ~ ~ ~ ~
0′ 0″ 0″ 0″ 0″ 0 0″ 0 0 0 0 0 0 0
-.t N 0\ 00 N -.t M r- or) 0 0 00
or; -0 00 00 N -0 N 00 …:. -0 0\ or; -0 M
-.t or) -.t -.t or) -.t or) -.t -.t or) r- -.t -.t
00 or) 00 N ~ or) 0 M N -or) 0-
OOO~I’—OOI’–I’ \O 1′–
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-~
,0 ,0 ,0 ,0 ,0 ,0 ,0 ,0 ,0 ,0 ~ ,0 ~ ,00′
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0 M t– M M t– -0 M VI M M t–
~ M ~ roo: M roo: N 0\ ~ 0\ 0\ ~ ~ M
MNNNMNNN-N- NM
“:t” 0
“:t” –
N “:t”
~ ~ ~ ,0 ,0 ~ ,0 ,0 ,0 ,0 ,0 ,0 ,0 ,0
0 0 0 0′ 0′ 0 0′ 0′ 0′ 0′ 0′ 0′ 0′ 0′
00 0 00 ~ 00 t– t– -0 00 ~ N 0\
or) 00 or) Nor)”‘” roo: .”.. 00 00 roo:
v NIr)-‘ot”Ir)\O-
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38
M –
0-
N
~Q) lU
::r: (,) lU ‘lt”U: -~Q ) .~-( ,) .-‘”‘””‘t:
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.-‘” -t: .Q ‘” t: 0 t: 0 00 0 -lU 00 lU ‘p t: Q) ‘””‘ lU ‘””‘ ~ .-‘” 00 lU 0
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t: “O~Q),””,2.o'””‘ Q)lU
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.t: t/) t: .E ‘” Q. ~
eQ) f– lU -0 ~ ~ ~ ‘” e Q);'” ~ ~
UJ (,)Q) Q N ~ lU t/) QE)”, ] >~ e’Q” “‘). D'”. ~lU .-~.~ ~ .a!l:U; “” “‘~ uQ ) .~~ SQ ) ~0 0tQ:0′”)” ‘ -5Q ) Q0)
~ < > t/) < < 0 Z
V) \Q
N -V)
cn ~
-<
~
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0-‘=’
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‘=’
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N
~
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~0
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N~
1,0
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~
t”)
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-0\ ..c-
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ff’) –
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0 0\ 00 -M 0 0\ –M -0 00
O\r–r- Mr-M-r-OO (“”)0\
.,:; ~ N”‘: …:
FY Decisions Allowed Remanded Denied Other
1992 33,483 15.7% 50.5% 32. 7% 1.1%
1993 26,400 16.9% 44.0% 36.9% 2.2%
1994 22,045 17.5% 48.3 % 28.1 % 6.1%
Estimated
FY 1992 FY 1993 FY 1994 FY 1995*
22,045
35,465
47,148
781
442
49.9
$1,127
6891
1,9961
28,000
38,000
57,148
745
449
62.4
$1,0351
33,483
38,229
21,981
240
411
81.5
$684
1,394
1,258
26,400
38,147
33,728
466
441
59.9
$1,046
1,172
3,533
Decisions
Appeals Received
Appeals Pending
Response Time
FTE
Decisions per FTE
Cost per Decision
Hearings -V ACO
Hearings -Field
1 Hearings have been suspended since May 1994 in order to conduct hearings at a time proximate
to the time an appeal is actually considered by the Board. The scheduling of hearings will resume
in early FY 1995.
39
Days
800 I 7R1
700 745
600
200
FY 1992 FY 1993 FY 1994 FY 1995*
* Estimated
Response time is defined as the number of days it would take BV A to
render decisions on all pending appeals at the processing rate of the
immediately preceding one-year timeframe
35000
30000
25000
20000
15000
10000
5000
0
FY92 FY 93 FY 94 FY 95*
* Estimated (FY 95 figure is based on single-member decisions
implemented July 1994)
40
Average Processing Time for Appeals Decided in September 1994
0% 20% 40% 60% 80% 100%
0 Begin Admin. Rep. Review oC.se Storage. Board Section OCR & Ending Admin. .Misc. Admin.
7% 13% 60% 13″/. 3% 4″/.
FY 92 FY 93 FY 94 FY 95*
* Estimated (FY 95 figure is based on single-member decisions
implemented July 1994)
41

PART IV
ADDITIONAL INFORMATION PROVIDED PURSUANT
TO STATUTORY REQUIREMENTS
38 V.S.C. § 7101(d)(2)
The following infornlation pertaining to preceding fiscal year(s) is required by
38 V.S.C. § 7101(d)(2):
Number of cases appealed to BV A during FY 1994: 18,067*
Number of cases pending before BV A at the start of FY 1994: 33,728
Number of cases pending before BV A at the end of FY 1994: 29,750*
Number of cases filed during each of the 36 months preceding FY 1995:
Estimated Number of
New Notices of
Disagreement
Received in the Field
Number of Appeals
Received at the BV A
Month FY94 FY93 FY92 FY94 FY93 FY92
2,457
3,114
3,010
2,393
1,638
934
627
450
697
989
858
2.Q.Q
3,360
2,951
2,956
2,720
3,074
3,766
2,927
2,766
3,090
3,064
3,882
~
3,665
3,255
3,233
3,188
3,360
3,652
2,870
2,650
2,857
3,335
3,451
Uti
4,673
5,098
5,167
5,065
4,754
6,113
4,670
5,229
4,703
4,484
6,291
~
5,386
5,416
5,421
4,567
4,557
6,457 –
5,715
5,573
5,635
5,305
6,109
Wi
3,694
6,638
6,210
6,474
5,777
6,472
5,978
5,506
5,900
5,939
5,525
ti12
October
November
December
January
February
March
April
May
June
July
August
September
FY Total * 18,067 38,147 38,229 61,813 65,676 69,928
* Includes only appeals physically received at the Board. Due to the large number of cases already at the Board
awaiting review, claims folders other than returned remands have not been transferred from regional offices to the
Board since February 1994. In the future,a n appealw ill be transferredt o the Board when the Board is ready” to begin
its active review of the associatedc ase.
43
(D) Average length of time a case was before the BV A between the time of the filing
of an appeal and the disposition during the preceding fiscal year:
Responsible
PaIiY
Average Elapsed
Time Interval Processing Time
Notice of DisagreemenRt eceipt
to Statemenot f the CaseI ssuance
Field Station 70 days
Statement of the Case Issuance
to Substantive Appeal Receipt
Appellant 59 days
Substantive Appeal Receipt to
Certification of Appeal to BV A
Field Station 244 days
Receipt of Certified Appeal to
Issuance ofBV A Decision
BVA 359 days
AverageR emandT ime Factor Field Station 107d ays
(E) Number of members of the Board at the end o-fFY 1994:
Number of professional, administrative, stenographic,
clerical, and other personnel employed by the Board
at the end ofFY 1994:
TOTAL:
57 members
427 employees
425.4 FTE
Number of acting members of the Board during FY 1994:
Number of acting members between July 1 -September 30:
Number of cases in which each such member
participated since the initiation of single-member
decisions on July 1, 1994:
11
6
425 cases
II. 38 V.S.C. § 7101(d)(3)
The following projections pertaining to the current fiscal year and the following fiscal
year (budget year) are required by 38 V.S.C. § 7101(d)(3):
Estimated number of cases that will be appealed to the BV A
Fiscal year 1995: 38,000
Fiscal year 1996: 38,000
44
(B) Evaluation of the ability of the Board (based on existing and projected personnel
levels)t o ensuret imely dispositiono f sucha ppealsa s requiredb y 38 V.S.C. § 7101(a):
(1) Background on BV A Timeliness Projections. The indicator used by the
BV A to forecast its future timeliness of service delivery is BV A “response time” on
appeals. By taking into account the Board’s most recent appeals processing rate and the
number of appeals that are currently pending before the Board, BV A response time
projects the average time that will be required to render decisions on that same group of
pending appeals. For response time computation purposes, the tenn “appeals pending
before the Board” includes appeals that have been certified for BV A review but are being
held in the field pending BV A action. BV A response time is computed by first
detennining the BV A’s average daily appeals processing rate for a recent given time
period. This is detennined by dividing the number of appeals decided by the calendar
day time period over which those appeals were dispatched. BV A response time is then
computed by dividing the number of appeals pending before the Board by the average
daily appeals processing rate. As an example, BV A response time for FY 1995 is
computed as follows:
Estimated 28,000 Decisions in ‘Y 1995 -;- 365 Days = 76.71 Decisions per Day
57,148 Appeals Pending before the BV A (end ofFY 1995)
Day = 745 Day Response Time on Appeals
76.71 Decisions per
(2) Response Time Projections: Based upon existing and projected levels of
resources, the estimate of BV A response time, as given in the Board’s budget submission
for FY 1996, is 745 days for FY 1995 and 687 days for FY 1996. These response time
projections are contingent upon the appeal receipts estimates for FY 1995 and FY 1996
shown in paragraph II(A), above.

ESTIMATES OF FUTURE TIMELINESS AND PRODUCTIVITY
The Board anticipates that the precedent decisions of the United States Court of
Veterans Appeals will continue to impose additional requirements for case analysis and
development. Because decisions of the Court are effective immediately upon issuance,
precedential decisions may require that the Board fe-adjudicate a large number of cases
already adjudicated, but not yet dispatched from the Board. Compared to FY 1994, when
personal hearings were suspended for the last five months of the year, the amount of time
Board members spend deliberating cases will, necessarily, be reduced as a result of the
resumption of personal hearings in FY 1995.
Estimates of the Board’s future timeliness and productivity can only approximate the
impact of the fact that the Board’s rate of remanding cases to the regional offices steadily
increased from the latter part of FY 1991 through FY 1993. The remand rate in FY 1994
was 48 percent. The majority of these cases will eventually be returned to thc Board for
45
adjudication, but the Board cannot anticipate when the requested development will be
completed. The estimates also do not include the additional cases returned annually to
the Board by the Court of Veterans Appeals for re-adjudication. This number has also
been rising.
It is anticipated that these trends of the past fiscal year will continue: (1) the directives
of the Court will continue to require the Board to expend additional time, effort, and
resources in producing appellate decisions; (2) resumption of hearings, suspended since
May 1994, will diminish the time that Board members may dedicate to case deliberation;
(3) the Board will continue to stay the adjudication of certain classes of cases pending
resolution of appeals from decisions of the Court of Veterans Appeals; (4) the Board will
continue to remand a large proportion of cases to the V A regional offices for further
development; and, (5) the Board will continue to receive cases remanded for readjudication
from the Court of Veterans Appeals. These trends will likely continue to
slow decision production, but it is unclear to what degree. In addition, unanticipated
factors may arise to affect decision production.
As previously noted, single Board member decision authority and other administrative
and legislative initiatives will, in time, ameliorate the decline in BV A decision
productivity and average response time. It is unlikely, however, that the average response
time realized prior to judicial review will be regained.
46

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