SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCOPERATIONS OF THE BOARD OF VETERANS' APPEALS AND COURT OF VETERANS APPEALS, AND REVIEW OF H.R. 3212, WITH RESPECT TO THE COURT OF VETERANS APPEALS RETIREMENT PLAN
WEDNESDAY, JUNE 10, 1998
House of Representatives,
Subcommittee on Benefits,
Committee on Veterans' Affairs,
The subcommittee met, pursuant to notice, at 2:10 p.m., in Room 334, Cannon House Office Building, Hon. Jack Quinn (chairman of the subcommittee) presiding.
Present: Representatives Quinn, Filner, Mascara, Reyes, Rodriguez, and Evans (ex officio).
OPENING STATEMENT OF CHAIRMAN QUINN
Mr. QUINN. Good afternoon. Thanks for allowing me to be a little bit late. We had votes on the floor and I guess these gentlemen are faster voters than meI think them through, all the way.
Before we begin and the subcommittee comes to order, I've been asked to note some interns from the VA who join us here today: Mr. Johnny Aguilar from the University of Minnesota Law School; Ivonne Chaustre from Berry College in Miami, FL; and, Monica Valez from the University of California at Riverside. Are you all here? Would you stand for just a second so we can say hello? Thanks for joining us.
We're here today as we begin to receive testimony relating to the operations of the Court of Veterans Appeals and the Board of Veterans' Appeals. These are two institutions that generate significant interest with the topic of claims processing arising as it does often here. The Board is empowered to provide de novo law review of any case and the Court functions as an appellate body reviewing records as designated by the Board. It's no secret that there are some problems with the claims processing. We've talked about it many times here and our witnesses have been here many times before.
Page 2 PREV PAGE TOP OF DOC VA has recently recalculated its accuracy and processing times at Regional Offices and has concluded that things are a little bit worse than they previously thought. In short, it seems to be taking longer to work a claim and the error rates are significant. Part of this issue is that the VA doesn't have sufficient personnel to do the job. That's why the Veterans' Advisory Committee has opposed the President's proposal to cut 125 FTE's in fiscal year 1999 and recommended funding for an additional 175 personnel to the Budget Committee.
The upshot of the problems at the Regional Offices is more people file to the Board, and, by extension, the Court. As a result, the waits for a case under appeal have been enormous, some taking several years. We have to figure out a way to do the job right the first time. And I suspect that if there were no demands because of poor development of, the Regional Offices would not be facing the current situation we see.
I believe the VA must automate its decisions process, get the Service Officers more involved upfront, and communicate better with the veteran. Let's face it, a veteran may disagree with a decision, but if that decision has been timely and done by an organization noted for the quality of its work, the veteran is less likely to appeal.
I would note that the Board's statistics have improved over the dark days of 1993 and 1994. Congress has provided them with additional personnel and they have recognized and reorganized to what appears to be a more efficient, accountable system of deciding a claim and that's absolutely a step in the right direction.
From a Member's perspective, we don't hear much about the Court. We have a bill before us today that will make some changes to the way the Court manages itself, and we're eager to hear from all the witnesses about H.R. 3212, the Court and the Board, and I know that ranking member Bob Filner is as interested in this issue as anybody on the subcommittee and the full committee. I'd like to yield to him now for any opening remarks he may have. Bob?
OPENING STATEMENT OF HON. BOB FILNER
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Mr. FILNER. Thank you, Mr. Chairman.
I, like you, am looking forward to hearing about the operations of the Court of Veterans Appeals and the Board of Veterans' Appeals, and to actions that our panels think are necessary to ensure our veterans that their claims are being considered in a just, fair, and timely manner.
I also understand that we'll be hearing some suggestions for changes regarding the retirement benefits for the judges of the Court of Veterans Appeals. It is important that the benefits provided to judges of this Court be comparable to those of other similar judges if we are to attract high-quality candidates for these important positions.
I am particularly interested in hearing from the Board of Veterans' Appeals with regard to issues raised by representatives of the veterans' service organizations who will be testifying later. I think we would all agree that veterans deserve to have their cases decided fairly. They also deserve to be served by a system which is perceived as fair, timely, and just.
Many years ago, General Omar Bradley stated that we are dealing with veterans, not with procedures; with their problems, not ours. The procedures which are used to adjudicate claims are designed to achieve justice for our Nation's veterans. They must be employed in a way which will achieve that end.
Therefore, I am concerned when I read testimonyand we'll be hearing that lateralleging that members of the Board of Veterans' Appeals or their staff become actively involved behind the scenes in litigation of cases at the Court of Veterans Appeals. I am concerned when I hear that it takes several years to adjudicate an appeal filed with the Court of Veterans Appeals and its recommendations for implementing changes in procedures are ignored. And I'm concerned when I hear that attorneys are reluctant to represent veterans because of the perceived unfairness in delay in paying attorney's fees which the veteran has agreed to pay a properly retained attorney. So, I hope today's hearings will address these concerns, as well as concrete steps to addressing them.
Page 4 PREV PAGE TOP OF DOC And I thank all of you for being here today, and I look forward to your testimony.
Mr. QUINN. Thanks, Bob. Thanks very much.
The ranking member of the full committee, Mr. Lane Evans, is with us, and I turn to Lane now for any opening statement he may have.
OPENING STATEMENT OF HON. LANE EVANS, RANKING DEMOCRATIC MEMBER, FULL COMMITTEE ON VETERANS' AFFAIRS
Mr. EVANS. Thank you, Mr. Chairman. I do want to thank you and Mr. Filner for holding this important hearing to review the operations of the Court of Veterans Appeals and the Board of Veterans' Appeals. I particularly want to thank Judge Nebeker for bringing to our attention the need for clarification of changes to its retirement system.
I am a strong supporter of an effective and vibrant court that addresses the claims of our Nation's veterans. I recognize that a fair and equitable retirement program, comparable to that of other judges, is necessary for the court to attract and retain competent judges to staff the court. I am pleased that the Board of Veterans' Appeals has made progress in reducing the backlog of pending claims. The length of time taken to resolve a veteran's claim continues to be too long and the quality of those decisions rendered continues to be less than adequate.
Testimony that the Board will be giving increased attention to the quality of the decisionmaking process is encouraging. I hope that the Acting Chairman will address the recommendations made by the Office of General Counsel more than one year ago concerning the organization of records and the relative role of the Board of Veterans' Appeals in preparing the record on appeal to the court.
Page 5 PREV PAGE TOP OF DOC So, Mr. Chairman, this is an important hearing and I look forward to hearing from our witness. Thank you for yielding.
Mr. QUINN. Thank you, Mr. Evans, and on behalf of all of us, I appreciate the time that you take to be at the subcommittee hearing today. I appreciate it very much.
Mr. Rodriguez, opening statement?
Mr. RODRIGUEZ. I just want to thank you for allowing this opportunity to hear the witnesses that are here, and the same comments that have been made in reference to, from both Mr. Evans and Mr. Filner, regarding the delays, I'd like to see what kind of testimony we might received in that regard.
Mr. QUINN. And Mr. Rodriguez, we're always grateful for your questioning when the witnesses are finished with their testimony.
Mr. REYES. Thank you, Mr. Chairman.
In the interest of time, I would just like to associate myself with the comments that have already been made, and also make mention that, as often happens with our veterans, there is a general feeling of disenfranchisement, and part of the solution has to come from hearings such as this. We appreciate the opportunity to participate.
Mr. QUINN. Thank you, and thanks for being here today.
We are going to begin with our first panel, and we're happy to have Judge Nebeker back again today. And joining us, accompanying him, is Judge Ken Kramer, member of the Court, as well as Mr. Standefer and Mr. Aument. We are pleased to have all of you here. And, if I may, I could remind everybody we're going to try to keep our written comments, or at least our oral comments, to about 5 minutes or so and leave time for questioning from the members who are here.
Page 6 PREV PAGE TOP OF DOC Judge Nebeker, if you'd like to begin, we're prepared now.
STATEMENT OF HON. FRANK Q. NEBEKER, CHIEF JUDGE, U.S. COURT OF VETERANS APPEALS; ACCOMPANIED BY HON. KENNETH B. KRAMER, JUDGE, U.S. COURT OF VETERANS APPEALS; HON. RICHARD B. STANDEFER, ACTING CHAIRMAN, BOARD OF VETERANS' APPEALS, DEPARTMENT OF VETERANS AFFAIRS, AND RONALD R. AUMENT, DIRECTOR, MANAGEMENT AND ADMINISTRATION, BOARD OF VETERANS' APPEALS
STATEMENT OF HON. FRANK Q. NEBEKER
Judge NEBEKER. Thank you, Mr. Chairman, and Mr. Filner. I want you to understand that this is more than a perfunctory thank you. It's important that this legislation be brought to your attention and we're grateful that you have given us this opportunity to come at this time to address a problem which is coming at us rather rapidly.
Judge Kramer is with me, and Judge Kramer is Chair of the court's legislative committee and has in that capacity agreed to appear here this afternoon to answer any questions that I would not be able to answer, and there is likely to be a number of them.
Initially, I want to make clear that our testimony with respect to this legislation represents the views of the court alone. It does not necessarily reflect those of the administration, which we have not consulted, being an independent judicial tribunal at the behest of the Veterans' Judicial Review Act of 1988. I will briefly summarize the major points of concern in this legislation.
And the major point is this one: We are on a collision course with the years 2004 and 2005, when under present law six judges' terms will expire within a 15-month period. I have included in my prepared testimony the scenario outlined by my newest colleague, Judge William Greene, in a talk he recently gave. He envisioned a day in 2005 when he would walk into the court one morning and find himself alone; that could happen. The most likely scenario is that four associate judges would retire within 11 months of each other between September of 2004 and August of 2005.
Page 7 PREV PAGE TOP OF DOC Let me put it another way. Two of the court's associate judgeships will be vacated in 2004. Two additional associate judgeships would be vacated in the first 8 months of 2005. In addition, my present plan is to continue to serve my full term, which expires in May of 2004. Under this assumption, it is likely that the court would have five simultaneous vacancies in 2005, especially considering that it takes upwards of 18 months for a new appointment. That was the period of time that it took Judge Greene to be confirmed. And I would remind you that the year 2004 is a presidential election year. So, it would appear that it would be a substantial period of time that the Court would not be able to function as a true appellate court.
There are other possible scenarios and I've outlined them in my prepared statement; I won't burden you with them today.
But to take us off this collision course, the provisions of this legislation that we propose would permit staggered retirement between 1999 and the year 2003, and provide a practical incentive for judges who become eligible to exercise that option. Precedent exists in three other Article I Courts for retirement based on completion of less than the full statutory term of service. And there are a number of other provisions applicable to Article III and other Article I Courts that permit retirement when less than full judicial terms have been completed.
Title II also provides for the recall of retired judges, which would allow me or my successor to call upon a retired judge, with that judge's consent, when the need arose. With the Court's increasing load, and it has doubled in the last 2 years, this provision makes eminent sense. All Article III lifetime judges and Article I Judges, except for this Court, have specific provisions for recall to judicial service. This provision would enable me and the future chief judge to deal expeditiously with the temporary spike in our caseload.
The second major facet of the proposed bill would rename the Court the United States Court of Appeals for Veterans' Claims. The name change, we believe, will give full voice to the express intent of Congress by making it quite clear that the Court is an independent judicial entity, completely separate from the Department of Veterans' Affairs. Misconceptions concerning the Court's nature still abound not only in the veterans' community, but, I am sorry to say, in the Government itself. This was recently revealed in an argument before the United States Court of Appeals of the Federal Circuit, in which a panel of that Court appeared to assume that the Court of Veterans Appeals was a part of VA for purposes of deciding the case before them.
Page 8 PREV PAGE TOP OF DOC The third major portion of the proposed legislation is that it would take further steps to achieve comparability with other Federal Courts that the legislative history surrounding the creation of the Court and its retirement shows was the actual intent of Congress at the time. The Court was created nearly 10 years ago under Article I of the Constitution. It is beyond dispute that Congress intended the Court to function as an independent judicial tribunal. That intent is reflected in language of the VJRAthe Veterans' Judicial Review Actand many of the statements on the floors of the House and Senate. I will not quote them at this point.
In short, the Court has judicial powers and its judges have judicial responsibilities comparable with those throughout the Federal judiciary.
Further, the stated intent of Congress was that, commensurate with these powers and responsibilities, the Retirement Survivor Annuity Program be established ''comparable to that available to other Federal judges'' which would place the new Court ''on comparable footing'' in this regard in relation to other Federal Courts. The proposed legislation would achieve that goal.
The legislation, while not seeking the most favorable elements of various plans, would permit the judges to achieve parity with bankruptcy and magistrate judges. And I would point out to you that bankruptcy and magistrate judges are not appointed by the President with the advice and consent of the Senate, but are appointed by the Article III judges in their own Courts. For example, the changes to the Court's Survivor Annuity Program would make it comparable to the Joint Survivor Annuity System (JSAS), a system available to judges of four different courts including the bankruptcy and magistrate judges.
There are other changes, including that relating to contributions required by the judges, that would make the Court's Survivor Annuity Program comparable to the JSAS. The Court's present system provides too few benefits for too much cost. Only one judge has elected participation, and that was only because of the unfortunate circumstance that he learned he was dying of cancer, and he did so to protect his widow.
Page 9 PREV PAGE TOP OF DOC Enactment of H.R. 3212 would be of particular fairness to her and to the survivors of deceased judges, generally, because it would rectify the disparity between this Court's survivors annuity and the annuities of other survivors of other Federal judges, including magistrates and bankruptcy judges.
Finally, I would make a comment on the fact that I am here to address this legislation. It may occur to some of you that is rather strange to have a judge of the court come up and start talking about its problems and its legislative needs. I am here because there is no one else to speak for the Court. We do not have a constituency. We do not have legislative liaison, as the Article III Courts do. It is of necessity that I depart from the traditional role of a judge to come and implore you to give our legislative proposal very serious consideration so that we may avoid the collision course that we are presently on by the year 2004.
[The prepared statement of Judge Nebeker appears on p. 85.]
Mr. QUINN. Thank you, Judge. Thanks very much, and I want to associate myself with the remarks of Mr. Evans, who points out that your work on this bill, H.R. 3212, is the basis of pointing out to us where we should be editing, and we appreciate that a great deal. I think we may have some questions when we finish, but now that we've heard from the Court side, before we get to questions, I'd like to move to the Board side and receive comments from Mr. Standefer. May I say before we begin, sir, that we appreciate the good job you're doing over therea stand-up job for all of us and we appreciate, under somewhat difficult conditions sometimes, that improvements are being made. And on behalf of the subcommittee and the full committee, we appreciate it.
STATEMENT OF HON. RICHARD B. STANDEFER
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Judge STANDEFER. Thank you, Mr. Chairman.
Mr. Aument is the Director of our Administrative and Management Service at the Board, and if, at an appropriate time, if I need to I may call on him.
It's a pleasure for me to be with you today to address our operations. In preparing for this hearing, I had occasion to review the Board's testimony before this subcommittee in February 1994; that, of course, was a little over 4 years ago. At that time, the Board's average response time was on its way to 781 days. We had decided only 22,000 cases that year, and we decided them, of course, with three-member panels, which was the law at that time. Our backlog of cases stood at 47,000 and it was on its way to 60,000. We were losing our most experienced Board members at an alarming rate; they were going to the administrative law judge ranks.
Today, I am pleased to report that the Board's response time is down to around 250 days; we've doubled our production. Our backlog is less than 30,000 cases, and we're retaining our Board members. What's behind this success? Well, a number of remarkable people.
First of all, this subcommittee has been outstanding in its support of the appellate rights of veterans and their families. You gave us the legislative tools we desperately needed. You championed the Board in budget negotiations. Our partners in the veterans' service organizations provided the Board with unparalleled support. As our decisionmaking capability increased, doubling from 1994 to 1997, these dedicated men and women have matched us step-for-step.
Our VA leadership ensured that dealing with the backlog at the Board was a top priority. At the Board itself, we reorganized so that we could take advantage of our new authority. Most of all, we've been very fortunate to have an extraordinary group of women and men, Board members, counsel, administrative support personnelthese are people who spend every working day of their lives assisting veterans and their families in the appellate process. They have responded magnificently. The average number of decisions per employee has increased by 75 percent since 1994 while the cost per case has actually declined by 25 percent.
Page 11 PREV PAGE TOP OF DOC So, I'd say we have a success story, Mr. Chairman. All of our stakeholders in this process have worked together to achieve a goal that none of us could have done alone. Before I discuss some of the challenges facing the Board today, I'd like to outline some specific things we've been doing recently.
As you may know, we recently published draft regulations to implement Public Law 105-111 that, of course, provides for a review of prior Board decisions on the grounds of clear and unmistakable error. This has been a very complex task. We have continued to strengthen our partnership with the Veterans' Benefits Administration, both at the Central Office level and at the Regional Office level. We have implemented special quality review activities to monitor the cases remanded from the Court of Veterans Appeals. Even though these 657 cases in 1997 represented only 3 percent of the Board's appellate decisions in 1996, we are indeed committed to quality and want to ensure the fairest result for all appellants.
We do, indeed, have more to do. In our view, Mr. Chairman, the challenge facing the Board at this point is to reduce the time it takes between the filing of the appeal and a final decision. In 1992, the average processing time for final decisions was 512 days. What that means is that, on the average, a veteran could expect an allowance or denial about a year and a half after the filing of his substantive appeal. By 1995, that number had doubled, and today it stands at 1,032 daysthat's close to 3 years.
We all have the right to be proud of reducing by two-thirds the time a veteran must wait for the Board to adjudicate his or her appeal. But the fact is that more than 40 percent of those adjudications continue to be remands, that is, cases returned to the Regional Office typically to gather and evaluate more evidence. These, of course, are not final decisions. And unless the Regional Office grants all the benefits that are at issue, and this happens only 25 percent of the time, then those cases come back to the Board to be worked again.
So remands cause two great difficulties: First, they mean that the veteran has to wait, in essence, through another appeal cycle, which means, on the average, another 700 days. Second, when the remand rate is very high, remands become a major factor in and of themselves in our backlog. They can, in fact, constitute more than 35 percent of our docket, and these are cases that have already been through the entire system one time. We want to reduce the number of remands because we think that can lead to giving the veteran a quality decision which is, obviously, more timely.
Page 12 PREV PAGE TOP OF DOC We need to increase training within the Board to improve quality. We need to capitalize on our business partnership with the Veterans' Benefits Administration by continuing to share some of the experience we have gained as VA's final arbiter of claims, and we're the closest contact, of course, with the jurisprudence of the Court. At the same time, we know that reducing the number of remands could have effects that may, on the surface, be perceived as negative consequences.
For example, it will reduce the number of decisions we makethat is final decisionsbecause it takes longer to draft a final decision, which is subject to judicial review, than it does to draft a remand. It will mean an increase in the number of allowed cases. But it will also mean an increase in the number of disallowed cases. We are going to need the understanding of our stakeholders during this transition.
In conclusion, Mr. Chairman, I think it's clear that there is much to be proud of in the Board's current performance, and many who share in the credit for that performance, we do not intend to rest but to seek out new ways to fulfill our statutory mandate of providing timely final decisions. We think that reducing the number of remands will make the appellate system even better for veterans and their families.
And I, at this point, would be pleased to answer any questions you might have.
[The prepared statement of Mr. Standefer appears on p. 90.]
Mr. QUINN. Thanks very much, Mr. Standefer, for your oral testimony here today.
For the benefit of our interns that we introduced earlier today, you need to understand that all the gentlemen and panel members later today submit a much lengthier statement that we are able to review beforehand. And some of the questions that we'll be asking today not only come from the 5 minutes or so of oral testimony, but also that written testimony. And if, again, interns are interested, we can furnish copies for you to take a look at what that looks like. Well, that's the teacher in me coming out I guess.
Page 13 PREV PAGE TOP OF DOC Judge Nebeker or Judge Kramer, if I may, VSO's have been critical, in fact, in the written testimony that we have for today regarding the participation of some of the VBA attorneys in cases that are before the Court. Can either of you comment on that, please?
Judge NEBEKER. We are unaware of any official participation by VBA members or their staff in cases before us. It is my understanding that there are two areas of participationone perhaps, unavoidable. The first area is the preparation of the record on appeal. Since the statute says that we are governed by the record before the Secretary and the Board, it becomes necessary for the General Counsel to know what material was before the Board on which it based its decision. There are, I suppose, a number of ways in which that could be accomplished. But it does entail, in some sense, involvement of somebody on the Board to tell GC what material in the recordin the C-filewas considered by the Board at the time of its decision.
The second area began to develop shortly after the Court was created. The General Counsel's Office originally did not have what they call ''settlement authority'' they soon got that. My understanding is that the General Counsel consults in some fashion with Board personnel in the process of deciding whether to try to negotiate a settlement, i.e., a remand. It's nothing official insofar as the court papers are concerned. We simply deal with General Counsel and nobody else.
Mr. QUINN. Thank you.
Mr. Standefer, any comment?
Judge STANDEFER. May I amplify on that just a little bit?
Mr. QUINN. Please.
Judge STANDEFER. Mr. Chairman, as you well know, proceedings before the Board of Veterans' Appeals are ex parte; that is, non-adversary. Once you get to the Court of Veterans Appeals, they become adversary. Our General Counsel defends its client, that is, the Secretary of Veterans Affairs, and they have the obligation to defend him very vigorously in an adversary proceeding before the Court of Veterans Appeals.
Page 14 PREV PAGE TOP OF DOC The General Counsel then, Group 7, may consult with any number of people in preparing that defense for the Secretary. This is the extent of their consultation with us. They consult with me from time to time, and they consult with our appellate liaison people. They never consult with a member of the Board of Veterans' Appeals or with its staff attorney's who prepare those decisions. They are completely insulated from any contact with Group 7. They do not lobby or anything of that nature to have their decisions defended vigorously or in a certain way.
Settlements are run routinely through me. And I might just add this: I've never seen one that I disagreed with.
Mr. QUINN. So, it's more in terms of preparation than those kinds of things?
Judge STANDEFER. Yes, sir. We have a great deal of expertise in our litigation support group. These are not our Board members, like I've said, and I would think our litigation support group has as great an expertise in terms of the jurisprudence of the court and, of course, the procedures, as any personnel in the Board of Veterans' Appeals.
Mr. QUINN. And why not use it?
Judge STANDEFER. And it's used then, yes.
Mr. QUINN. Okay. Mr. Filner.
Mr. FILNER. Thank you, Mr. Chairman.
Judge, I would like to pursue what the chairman was saying, but that does not mean that either of us disregard your testimony on the necessity of legislation about staggered terms and other matters. We think that's very important. But we have some other questions that are coming from some of the VSO's, so please don't interpret our questions as disregarding your testimony.
I want to just follow up on the chairman's question: Judge, in your written testimony, you spent quite a bit of time, the first couple pages, on the notion of the Court as an independent judicial entity and including some very interesting statements from the legislative history. It seems to me that if, in fact, staff of the Boardand I'll get back to your answer, Mr. Standefer, laterbut, if, in fact, staff of the Board was intimately involved with preparation of materials for the VA attorney in front of youyou said you were unaware of anythingbut, if there were close collaboration, wouldn't that put to doubt some of the notion of an independent entity?
Page 15 PREV PAGE TOP OF DOC I mean, we are both just simple school teachers here. But I'm sure our notion of the judicial process is that when something is appealed from one level to another, the initial level from which you are appealing should not be involved in the decision of the next body, otherwise you don't have an independent decision.
Judge NEBEKER. Well, let me answer the question this way, Mr. Filner: The merits of the case before the court necessarily depend upon the record that is before the court. The independent decision on the merits must, and does, remain quite apart from the Board or any influences that it might exert
But insofar as preparation of the record on appeal, if they did not expurgate the C-file, we would have our chambers totally full of irrelevant papers, and it would take days to go through a record and weed out that which is irrelevant that's in the C-file. So, it does become necessary
Mr. FILNER. Define for me the C-file?
Judge NEBEKER. The claims file which will contain the history of every claim and every paper affecting that veteran for years and years. Some of them, I guess, are file cabinet size.
Mr. FILNER. So, you ask the previous level to just give you the record that's relevant?
Judge NEBEKER. The statute says
Mr. FILNER. I understand, but if you knew that the staff was doing more than just expurgating extraneous materialand, of course, even the definition of ''extraneous'' might affect the way you look at the recordbut if they were doing more than just presenting the written record, would you say that that threatened the independence of the decisionmaking process?
Judge NEBEKER. That would definitely contaminate the decisionmaking process. I might add this: The Court has recognized all along that General Counsel is obligated by the code of professional conduct. They recognize that fact, and their duty under that code imposes upon them the obligation to include in the record on appeal not just the material that supports the decision of the Board, but any material that may not support the decision of the Board, that may point out that there is errorand we do find error in a sufficient number of the cases that are brought before usthat I have no reason to assume that General Counsel is not responding to his or her professional obligation to ensure that both sides are accurately reflected in that record on appeal.
Page 16 PREV PAGE TOP OF DOC Mr. FILNER. Okay.
Judge NEBEKER. There seems to be integrity in it because we do find error, harmful error, in a substantialtoo substantialnumber of cases.
Mr. FILNER. That could just mean incompetence, also.
Judge NEBEKER. Pardon?
Mr. FILNER. Error could just mean incompetence. I mean, it doesn't have to indicate some impartialityjust a side comment.
Judge NEBEKER. But you do have to have documents in there that go both ways, if you will.
Mr. FILNER. I understand, but you did say that if you had evidence or substantial testimony to the effect that there was something more than just the presentation of the recordin your wordsthat would definitely indicate some contamination of the process.
Judge NEBEKER. Yes. But I would think that any assertions to that effect would have to be made with particularity
Mr. FILNER. I understand.
Judge NEBEKER. And specificity. I have a feeling that substantiation is not often enough provided.
Mr. FILNER. I'm going to introduce some of that into the record.
Mr. Standefer, do you have anything to comment more?
Judge STANDEFER. No, sir.
Mr. FILNER. I was interested in your remarks that the Board and the Board membersand somebody, I forget what you saidwere insulated from any further discussion of the process.
Page 17 PREV PAGE TOP OF DOC Judge STANDEFER. I might just explain very briefly our organization. And that is, we're divided into four decision teams, and the four teams are: Board members and their support staffsthat is, the attorneys who help them prepare decisions; out of my office then, we have what is called a Litigation Support Unit, the two are separatethat is, the Decision Teams are separate from the Litigation Support Unit. Our General Counsel's Group 7, from time to time, in defending the Secretary of Veterans Affairs before the Court will consult with our litigation support unit seeking advice as to the best defense. We give them that advice, but that's all it is.
Mr. FILNER. Wait, wait, waityou give them advice as to their best defense?
Judge STANDEFER. If they seek it.
Mr. FILNER. You just made the decision, presumably negative to the party, and then you're going to be involved in advice to the attorney who now takes the case to defend the decision?
Judge STANDEFER. If they seek that advice, we will give it to them based on our expertise.
Mr. FILNER. I don't have enough time here right this second, but that seems to me, again, as a layman and not an attorney, that if I were a litigant here, and I knew that the folks who just made an adverse decision on me were then involved in dealing with the next level of argument, it would seem to me that I would not be getting a fair deal here.
And, Mr. Chairman, I would likeI'll come back to it in another question roundbut I would like to introduce in the record a packet of materials that, I assume, the later testifiers will refer to, a packet of correspondence between DAV and the VA, memos from the Litigation Support Division to the attorney for the VA. There are pages of very minute discussions of reactions to a draft decision line-by-line going over the matter. This is not just expurgating a record or presenting the record of decision. This is detailed advice. And it is put in a very disrespectful way, the first thing from your Litigation Support Division said refers to the veteran: ''Did this guy have two accidents in 1981 or did he only have one?''
Page 18 PREV PAGE TOP OF DOC I mean, they're talking in a way which shows very informal and intimate kinds of contact between two levels of decisionmaking which, as a laymen, I assume would be separate. I'll come back to this, but you're claiming the Litigation Support Division is different from the folks who are making the decision. I suspect that if I came to visit your offices, these people would know the other people pretty well, and would talk to them regularly, and a memo like this is not going to come from an insulated situation, in my opinion.
So, I would like to explore that with you further but Mr. Chairman, I ask unanimous consent to introduce these memos in the record.
Mr. QUINN. Mr. Filner has asked for information to be introduced in the record. My only question is whether or not that's confidential information.
Mr. FILNER. The material I have in front of me has the confidential information that you are concerned about deleted.
Mr. QUINN. Are there any other objections?
There are no objections; so ordered.
[The information follows:]
Offset folios 01 to 020 insert here
Makes pp. 13 to 32
Mr. QUINN. Mr. Rodriguez is next. Questions?
Mr. RODRIGUEZ. Thank you. Let me just ask the question. I guess maybe the Judge or anyone might respond to it. We had, at least I've gotten some cases and some situations whereand I'm wondering whether you take any precautions for those individuals that are seriously illthat maybe by the time you reach the case, the individual is no longer alive? And I'm wondering whether you take any precautions at all in those cases either for the ones that appealing and are in initial appeal?
Page 19 PREV PAGE TOP OF DOC Judge NEBEKER. Yes, sir, we do. Anytime anyone representing a veteran informs the Court of a circumstance requiring expedited consideration and decision we will grant that. I think in February I testified, I gave an exampleI don't recall the name of the case, but I did include it in my testimony thenof a case that was exemplary of that where we did grant expedited consideration and we did rule on the matter in a very short order and before the individual died.
Mr. RODRIGUEZ. How often do you do that?
Judge NEBEKER. It doesn't happen too often because the parties don't file a motion for expedited consideration. And so we'd have no way of knowing whether they're in extremis or not until such a motion is filed. And it is favorably acted upon when it is filed.
Mr. RODRIGUEZ. Okay. And also, there was a recent court decision suggesting that the Board of Veterans' Appeals should revise its notice to avoid problems of veterans being deprived of their appellate rights because the appeals are inadvertently filed with the Board of Veterans' Appeals or the Department of Veterans Affairs. Has the Board taken any action to address this situation? Do you know?
Judge STANDEFER. We have those notice papers under consideration at all times and we think right now that our notice is clear. We inform any appellate that we send a decision to what the address of the Court of Veterans Appeals is and how that appeal with the Court is to be filed and time limits therefor.
Mr. RODRIGUEZ. What percentageand I know you gave a great number of figures, but you indicated that it takes 3 years for the re-appeal or a thousand and something dayswhat percentage of the cases are re-appeal?
Judge STANDEFER. Well, let me answer you this way. What I said was is that when we must remand to the Regional Office an appeal, it takes about 700 additional days for that case to be reworked throughout the system and to come back before the Board and to be adjudicated again before the Board. And right now, over 40 percent of our appellate decisions are remands. So that adds to the total processing time, bringing it up to about 1,032 days, which is over 3 years with respect to our total appellate system processing time. This was my testimony.
Page 20 PREV PAGE TOP OF DOC Mr. RODRIGUEZ. Forty percent?
Judge STANDEFER. Yes, sir.
Mr. RODRIGUEZ. And have we filed maybe some discrepancies in the initial decision that might need to be reviewed or need to be corrected in order to make those initial decisions so people don't have to go through that process?
Judge STANDEFER. Remands can be for any number of reasons. Ordinarily, it's because of deficiencies in evidence development at the Regional Office level. It could be because of a due process defect, an overlooked hearing or request for example. It could be because the claimant had introduced new evidence at the Board of Veterans' Appeals level and had refused to waive initial consideration of that at the Regional Office level. There are many, many reasons for that high remand rate.
To some extent, unfortunately, it does reflect a quality problem that Regional Offices are having with their initial adjudications and they have acknowledged the same. We're working very hard to reduce that remand rate, both at the Veterans' Benefits Administration level and at the Board of Veterans' Appeals level.
Mr. RODRIGUEZ. Do you know how many cases, overall, deal with mental health cases that can be defined in terms of mental health?
Judge STANDEFER. A good many. A high percentage of our appellate workload does involve psychiatric-related cases. I could provide that for the record. I just would be reluctant to tell you exactly what that percentage is right off the top of my head.
Mr. RODRIGUEZ. I'm just curious. And I don't know about this, but I'm having difficulty with social security and SSI and I've encountered judges that have basically either verbalized openly that in some cases they don't even believe in mental health problems, and deny the claim just under those basis. Thank you.
Mr. QUINN. Thank you, Mr. Rodriguez.
Page 21 PREV PAGE TOP OF DOC Mr. Reyes.
Mr. REYES. Thank you, Mr. Chairman. I just wanted to follow up on a couple of points that Mr. Rodriguez was mentioning. Judge, the first one is: have you considered the promulgation of the rule that would provide or advance cases on the docket as Mr. Rodriguez was making a note of, either a serious illness or age consideration?
Judge STANDEFER. Yes, sir, we have, in our rules of practice right now and have had for many years, provisions for advancement on the docket for the reason you've just suggested, a serious illness, financial catastrophe is imminent.
Mr. REYES. Is it clearly defined and specified where veterans and/or their representatives can clearly understand that that is an option? I kind of sense that perhaps you acted more as an intervenor in some of these cases than actually that this was spelled out or stipulated in writing.
Judge STANDEFER. I think probably we do not spell that out in the information we send to the clients when we receive their appeals.
Mr. REYES. And that is a very common complaint that we hear. And again, in discussions with some of my colleagues, part of the complaint that manifests itself over and over to us, is that the veterans and/or their attorneys or representatives or organizations feel like it's a situation akin to pulling teeth in terms of getting the information. I just think that it'd be more practical to be able to lay out what the options are so that, let's face it, in too many cases we don't do a good enough job for our veterans and we discount the sacrifice that they have paid for this country, and I don't know what the process is Mr. Chairman, in terms of making recommendations or asking that there be a systemic way of providing information to veterans about issues like this.
Mr. QUINN. Well, you are part of that solution, Congressman, and this subcommittee is where it would happen. So, we're anxious to hear just like we were anxious to hear the suggestion of the staggered terms and recall provisions that the Judge brought to our attention, the subcommittee is the place to do that.
Page 22 PREV PAGE TOP OF DOC Mr. REYES. And so, I'm assuming that we would be talking about legislative remedies or
Mr. QUINN. I'm sure staff would be pleased to work with you as would the gentlemen at the table here today.
Mr. REYES. Okay.
Mr. QUINN. Am I right? I mean, you're nodding yes. But for the record, Mr. Reyes has asked for some assistance and maybe some legislative remedies. Judge, would your people be willing to discuss that with him?
Judge NEBEKER. Of course. And I would be most happy to supply copy of our Court rule that deals with this problem to assure you that we do have such a rule.
[The information follows:]
Offset folio 05 insert here
Makes p. 36
Mr. QUINN. And Mr. Standefer?
Judge STANDEFER. Yes, sir, Mr. Reyes. Thank you. I'd take your suggestion on board.
Mr. REYES. Thank you.
Mr. QUINN. Thank you, Mr. Reyes.
Mr. Mascara, thank you for joining us this afternoon, and I know you've seen the written testimony. Would you like to ask some questions now?
Mr. MASCARA. Thank you, Mr. Chairman, and thank you for calling these meetings. I have an opening statement that I'd like to place in the record.
Page 23 PREV PAGE TOP OF DOC Mr. QUINN. Without objection, so ordered.
[The prepared statement of Congressman Mascara appears on p. 82.]
Mr. MASCARA. Thank you.
I had an opportunity last night, and much to my chagrin, it did not help me to fall asleep but caused me to be up until about 3 o'clock this morning sifting through the information I have hereinformation provided not only through your testimony, but by my staff. Just let me read to you what I read and I began to wonder what the problembecause I think there are some very serious problems here. And I don't know whether you have any solutions or maybe it will take a legislative remedy to get to the bottom of all this.
And I'm reading, of course, just one paragraph out of the many paragraphs that was written by my staff that ''the Board and Court are too cozy.'' Do you know what that means? Any reason why my staff would write that in information provided to me to prepare myself to be here today? Does anybody want to comment on that statement?
Judge STANDEFER. I don't think we're cozy at all.
Mr. MASCARA. I'll go on then. ''After a case is decided by the Board, it goes to the Court. However, the Board briefs the Court ahead of time as to why they decided the case in that way. The defendant is left out of the loop and has less of a chance to get the appeal approved.'' And it seems like sort of an ex parte kind of thing and I'm not a lawyer, my son is, so I can say with some impunity that I often question motives of the judicial system back home and in this country. I guess that's what they meant by being cozy. Here is this person who lost his appeal, he's out here while these other two partiesone of which should at least be looking out for his interestsareexcuse the expressionin bed with the Court. I mean, who wrote those laws or rules? I mean, how did that ever happen?
Judge NEBEKER. Mr. Mascara, I think that's a total misconception. First of all, there are two parties before the Court, the veteran who lost and the Secretary. The Secretary is ubiquitous. The Board is under him, and, under the law he is represented by the General Counsel. The General Counsel is charged to represent him. Now, to the extent that those two entities of the Secretary get together, that's an executive branch function and it's their business. It's not two parties. It's not them dealing with the Court at all; they're dealing with themselves. Insofar as the Court being briefed by the Board, that is a total misconception.
Page 24 PREV PAGE TOP OF DOC In the record on appeal, there will always be a copy of the Board's decision. Of necessity that has to be there. We review the Board's decision for its accuracy under the law and for whether there's evidentiary support for their factual conclusions. Of necessity, we have to have that opinion. But that does not constitute, if you will, a private, an ex parte briefing of the Court by the Board. The only party before the Court is the Secretary. I repeatthe Secretary is ubiquitous. He is the Board and the General Counsel, and the General Counsel represents the Secretary before the Court. The record before the Secretary and the Board in that particular decision is the only thing we can look at, nothing more. That record on appeal has to have integrity. We rely upon the professional integrity of the General Counsel's lawyers to ensure that that record is complete and fair, that it is not totally one-sided.
But, whatever it is that you've got in your hand there reflects, to my way of thinking, a total misconception of the function within the Department of Veterans Affairs of the Board and the General Counsel as entities of the Secretary and the separate distinct review authority, independent authority of the Court which deals with the matter only on the record on appeal.
Mr. MASCARA. It's apparent that I touched a nerve.
Judge NEBEKER. No, you've not touched a nerve. You just simply indicated to me that there's still misunderstanding as to the nature of appellate review.
Mr. MASCARA. Maybe I need to ask the chairman if I can submit some future questions in writing to the judge.
Mr. QUINN. And Judge Kramer has asked if he could be heard for just a second. Judge
Judge KRAMER. Mr. Mascara, if I might just comment briefly on your inquiry, I think that it shows in a ''nutshell'' what we're trying to accomplish with a name change. Now, admittedly, a name change is perceptual. It's not going to go the whole way to state to the world that we're an independent judicial tribunal that's totally separate and apart from the VA. I suspect whoever provided you with this information may be confusing the Court with the BVA, the gentlemen that are sitting to the left of us. And this happens all the time. Not only does it happen on the Hill, not only does it happen amongst the general public, but it even happens with the Court, the Federal Court which has been charged with the responsibility of reviewing our decisions.
Page 25 PREV PAGE TOP OF DOC Even it, as late as 2 months ago, for all practical purposes, indicated in an oral argument that it thought our Court was part and parcel of the VA and actually located in the VA and inferentially was under the control of the Secretary. So, anything that you can do legislatively to make sure that that misconception is cured is going to be of immense help.
Mr. MASCARA. Well, the Court of Veterans Appeals, as I understand it, is an independent judiciary. Do we have oversight, this committee?
Mr. QUINN. I'm not able to answer that. Counsel?
Yes, we do.
Mr. MASCARA. Thank you, Mr. Chairman.
Mr. QUINN. Thank you, Mr. Mascara.
I might also point out that in most cases when we have hearings the Court usually and its representativesJudge, and often that's youappear separately. We probably confuse it even further by having all of you at the same table this afternoon, in the interest of time, I might say, and then we ask you to sit next to each other.
Judge NEBEKER. I felt confident that you would not misconstrue the role of the Court just because we were sitting here together.
Judge KRAMER. Speaking for myself, I can tell you that this is about the coziest I've gotten with these guys since I've been on the Court. I always thought that, rather than being cozy with them, that they had a high degree of consternation for some of my decisions. (Laughter.)
Mr. QUINN. Well, thank you. And I think, Mr. Mascara, the offer has been made by the panel before to feel free to forward some questions and some suggestions. And while renaming is a step in the right direction, Judge Kramer, it's a start and maybe that's part of the problem.
We're going to begin a second round of questioning here. And I'm going to yield to Mr. Filner. Mr. Filner?
Page 26 PREV PAGE TOP OF DOC Mr. FILNER. Thank you, Mr. Chairman, and before we underplay the seriousness of Mr. Mascara's question, with his permission, I would like to re-phrase the sense that some of us here are getting that the coziness is not between the Board and the Court, but between the Board staff and the staff of the General Counsel at the Court level in dealing with some of the problems. Now that shows the difference there which you described, Mr. Kramer, and Judge Nebeker.
But the general consensus of a layperson and a veteran is that these are independent situations. The record of the Board is there and then people can work on it. And when I asked Judge Nebeker earlier about what would constitute contaminationI'll use your wordsof the independence, you laid out two conditions. Let me read you just three or four sentences from a memo from the Litigation Support Division of the Board of Veterans' Appeals to the General Counsel and ask you if that goes beyond your two conditions and leads to the coziness which Mr. Mascara suggested.
First sentence: ''We agree that a remand is appropriate.'' I mean, this is the Board staff saying, this is an appeal of their decision, and they're commenting on the appropriateness of their initial decision. I'll go further. ''I think the representative,'' that is, the veteran I take it, ''has misinterpreted the block quote from the Board decision which is on page five of the motion.'' That is, he's commenting for the attorney on what the veteran's attorney has said. Here's the Board, which made the initial decision, is telling the attorney at the next level that the veteran is wrong in his interpretation.
I quote again, ''I think that the Board provided''this person who is writing this memo is a staff of the Board''that the Board provided adequate reasons about this which provides at the effective date,'' et cetera. The memo's commenting line-by-line on a potential decision that is being suggested to the Court, I take it.
''I also disagree,'' this is quoting, ''with the statement on page 7 and 8 that indicates the information in the chart demonstrates community.'' That is, you're giving the staff of the initial decision the right to comment on the next level of decision. That's enough. Doesn't that go beyond, Judge, the conditions you laid out earlier in the answer to a theoretical or a hypothetical question?
Page 27 PREV PAGE TOP OF DOC Judge NEBEKER. Well, I think not, sir. You're absolutely correct in your initial observation that, if there's a problem, it's within the Executive branch.
Let me make this suggestion to you: There isn't a case in the United States Supreme Court involving the Government that does not have agency counsel dealing with counsel who will appear on behalf of the United States in the Supreme Court. Of necessity, those lawyers have to get together and talk about the position that they want to take. There's an official position that the agency will want to take. The Department of Justice will say maybe, that's fine, or no. There has to be that interdepartmental communication.
I'm neither rising to the defense of what is going on
Mr. FILNER. That goes beyond your initial statements. I understand what you're saying. Again, and the legal niceties may even be followed here, I don't know yet, we're going to follow this upbut the average person bringing an appeal of a decision, I think, is entitled to the sense, the perception, and the reality that this is a new level of decisionmaking. This is a new look at it and if the Board staff is, in fact, commenting on the exact terms of the settlement agreement, this is not an independent thing. The same people who made the original decision and who will look at it again on the remand, are deciding the terms of interpreting their original decision and the terms of which they're going to reconsider. That, it seems to me to be unfair even if it's ''legal.''
Judge NEBEKER. Well, and that may be a political issue that is to be decided by the Congress as to just exactly who can talk to whom in the Department. But that conversation between those folks, bear in mind, has nothing to do with the ultimate decision that the Court may make if the case is one that does not settle and then comes on for a decision.
We are an adversarial system at the Court level. Ultimately, we get the position of the Secretary in his brief. Now that position may be dictated or not, by virtue of what staff at the Board suggests, or requests, or demands that the General Counsel say in that brief. But we
Page 28 PREV PAGE TOP OF DOC Mr. FILNER. No, I understand that you make a distinction, and Mr. Mascara, I think, will accept that. But in the initial statement about coziness, if you'll just change some words that, I think, exist. I think this committee should look at whether that, again, fits in the legal niceties, whether the Board of Veterans' Appeals, which, again, made one decision and may have to be involved in a remand takes an intimate role in the phrasing of the way a decision above it is made and the terms of the remand.
I think that the veteran's entitled to a little more fairness than that. And I'm going to let the VSO representative speak to this because they, I think, represent people in a far more intimate way than I know and can comment on this. But, I think, that's the essence of the situation that, I think, several of us have come
Mr. QUINN. The gentleman's time has expired. The gentleman's time has expired, but will be back.
Mr. Rodriguez, follow-up question? Mr. Reyes? Mr. Mascara? I've just been advised by counsel that we do have the VSOnow it's my time; I get a green light. Thank you.
Our next panel will be VSO's, and that's what Bob talked about. We'll hear some more oral testimony of what they've written to us and that generates some of the questions, obviously, that you have here today.
Is the General Counsel here? If someone from the office is here, I don't know how out of the ordinary this is, but, Mr. Filner, I'm wondering if it might not be appropriate to ask someone from the Counsel's office to join us at the table and yield about 5 minutes or so, to at least comment without being questioned any further on what we've been listening to for the last 45 minutes or so. Is there anybody here? Mr. Zeglin? I'm being told someone's here. Sir, are you prepared to join us? We saw you in that third row there.
Mr. ZEGLIN. I'm with the General Counsel's office, but you really need to be talking to someone
Page 29 PREV PAGE TOP OF DOC Mr. QUINN. Just one second. Why don't I excuse the rest of the four gentlemen that have been with us. Okay.
Judge NEBEKER. Thank you, sir. Thank you very much.
STATEMENT OF DONALD ZEGLIN, DEPUTY ASSISTANT GENERAL COUNSEL, DEPARTMENT OF VETERANS AFFAIRS
Mr. ZEGLIN. My name is Donald
Mr. QUINN. I'll ask you to introduce yourself.
Mr. ZEGLIN. My name is Donald Zeglin. I'm a Deputy Assistant General Counsel for the Department of Veterans Affairs.
Mr. QUINN. Thank you. And let me be more direct then. Thank you for joining us at the table before our next panel joins us. You've been in the room this afternoon. I know you don't have prepared remarks of any sort, but for the benefit of five Members of Congress who are herethe Board has stayed there in the room as wellcould I ask you just to comment in a few brief moments as to this past 45 minutes discussion?
Mr. ZEGLIN. It's rather difficult for me to comment because it seems like there's a factual discrepancy here
Mr. QUINN. Would you tell us what you might see as factuallywhat the discrepancy seems to be?
Mr. ZEGLIN. Well, the Board seems to be saying that the staff attorneys in Group 7 who handle the CVA cases do not talk to the Board members. The Service Officers seem to be saying that they do. I don't know. So it's difficult for me to comment. I'm not in the group that handlesI'm not in Group 7, so I just don't know factually
Mr. FILNER. What if one of the facts was correct? I mean, what if they did talk to each other? Does that create any legal or ethical or common-sense problem?
Page 30 PREV PAGE TOP OF DOC Mr. ZEGLIN. I think there may be problems if they were talking to the Board members who were deciding cases. But, as I said, I don't know if they are and I don't believe
Mr. FILNER. But the problem with that legal nicety is that the Board, as do all Congress people except the five here, depend on staff. I mean, if the staff is talking to staff, in reality, the Board members are going to be dependent on what the staff tells them what the thing was, and so, the legal nicety breaks down in practice.
Mr. ZEGLIN. I thought what Mr. Standefer was trying to point out is that the Board is set up in such a way that the Board staff that deal with Group 7 are not the same Board staff that are involved in rendering BVA decisions.
Mr. FILNER. Well, that's something we should find out and discuss. I appreciate that.
Mr. QUINN. Thanks very much, Bob.
Sir, I didn't mean to put you on the spot. I mean, we're here. We're sometimes more formal than we should be, and I believe that maybe Mr. Filner and I, on behalf of all the members of the subcommittee can have a discussion following this hearing today. And it's likely that maybe another hearing is in order, and we can have all the people we need prepared, Bob. And then we can get some more specifics, even to the document that you entered into the record today. That might be helpful today. Thanks very much. We appreciate it.
Our second panel, I'd like to call forward. Representatives of VSO's please come forward: the Disabled American Veterans, the Vietnam Veterans of America, AMVETS, Veterans of Foreign Wars, and Paralyzed Veterans of America. Please come forward and join us this afternoon.
Good afternoon, everybody. Thanks for bearing with us. We were a little late getting started this afternoon, but it's good to see you back again. You've been before the subcommittee and the full committee before. We're going to begin by saying we ask that you keep your oral statement to about 5 minutes. We are aware that you submitted testimony. The members and the staff have had a chance to review it, and if it's okay with all of you, I'm just going to start from my leftthat would be your rightwith Mr. Thomas and ask if you'd begin tonight and we'll work our way across the table. Welcome.
Page 31 PREV PAGE TOP OF DOCSTATEMENTS OF HARLEY THOMAS, ASSOCIATE LEGISLATIVE DIRECTOR, PARALYZED VETERANS OF AMERICA; JOHN J. MCNEILL, ASSISTANT DIRECTOR FOR VETERANS' BENEFITS POLICY, VETERANS OF FOREIGN WARS; VERONICA A'ZERA, NATIONAL LEGISLATIVE DIRECTOR, AMVETS; WILLIAM F. RUSSO, DIRECTOR, VETERANS' BENEFITS PROGRAM, VIETNAM VETERANS OF AMERICA, AND RICK SURRATT, ASSISTANT LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS
STATEMENT OF HARLEY THOMAS
Mr. THOMAS. Thank you, Chairman Quinn.
On behalf of the Paralyzed Veterans of America, I appreciate this opportunity to testify regarding the issues concerning the Board of Veterans' Appeals.
It seems that we raise the same issues regarding BVA year after year. We point out the delays faced by veterans, and although these delays have improved, they are still intolerable. Although many statistical indices have improved, we are still seeing remand rates that are too high, processing times that are too long, and productivity that is too low. Again, PVA believes that an approach which highlights the quality of the decisionmaking process over mere quantity, will lead to fewer remands and will markedly reduce the intolerable time delays still facing veterans seeking benefits.
A simple step that can be undertaken by VA to improve quality would be to correct the regulation that provides that the BVA is not bound by VA manuals, circulares, or administrative issues. Currently, this regulation is not in accordance with statute or case law. To ensure that consistent decisions are made in the Field Office, and at the BVA, this regulation must be changed. One matter that gravely troubles CVA is the involvement of the BVA in defense of its decisions before the Court.
Page 32 PREV PAGE TOP OF DOC Before an appeal can reach the Court, the BVA decision must be final. Once a decision is final, the BVA ceases to have an interest in it. The current practice is analogous to a district court judge attempting to influence how his or her decision is decided on appeal in the circuit court. BVA is not a party to the appeal once it reaches the Court. The BVA's clandestine participation harms veteran appellants, is not authorized by law or statute, and leads to concerns over the impartiality of the process. PVA asks that you address this troubling situation.
Another issue facing the Court is the large number of requests for time extensions brought by the VA. The delays adversely effect veteran appellants. PVA is not entirely convinced that the solution to this problem lies in amending Rule 26(b) of the Court. The Court already possesses the power to deny extinctions where good cause cannot be shown. We ask the Court to be more sensitive to the often detrimental effects that time extensions can have on veterans.
PVA believes that the biggest hurtle facing timely appellate decisions and the cause of many VA's request for extensions is a lack of resources within Group 7. The VA must be accorded sufficient resources to enable the VA to meet its responsibilities before the Court.
PVA, in general, is not opposed to H.R. 3212. In our view, the guiding principle with respect to the Court's retirement system is that the system must be equitable and comparable to other Article I Courts. To remedy an oversight in the Veterans' Judicial Review Act that did not provide for staggered terms, we do not oppose title II, which provides for staggered retirements of a limited number of judges.
Mr. Chairman, and members of the subcommittee, PVA appreciates this opportunity. I'd be happy to answer any questions that you may have.
[The prepared statement of Mr. Thomas appears on p. 94.]
Mr. QUINN. Thanks, very much, Mr. Thomas.
Page 33 PREV PAGE TOP OF DOC I think what we'll do is hear from all the members of the panel and then, adding any questions for all of you when we're finished, if that's okay.
Ms. A'zera from AMVETS.
STATEMENT OF VERONICA A'ZERA
Ms. A'ZERA. Thank you. Mr. Chairman, AMVETS appreciates the opportunity to testify before the subcommittee on benefits on the operations of the Board of Veterans' Appeals and the Court of Veterans Appeals. We believe it's very important for your committee to conduct oversight hearings on these issues. We are also prepared to give testimony on H.R. 3212, a bill to revise the provisions of law relating to the retirement on judge's on the Court.
You have my written testimony, so I'll make my remarks brief.
The Board of Veterans' Appeals 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 is to conduct hearings and dispose of appeals properly before the Board in a timely manner. There have been many changes to the BVA operations over the years which have mostly improved the process. Congress has provided BVA with the resources to hire and train enough employees to adjudicate appeals in a timely manner.
To ensure that decisions are properly decided, Board members must be held accountable for the decisions they sign. Additionally, Regional Offices must be held accountable for the quality of their decisions and ensure that each case is properly developed prior to its transfer to BVA. The VA has adopted the idea that adjudicators will also be held accountable for their decision. We believe this was a step in the right direction.
Page 34 PREV PAGE TOP OF DOC We were also heartened by the passage of the clear and unmistakable error bill passed last year. AMVETS has been a long time supporter that claimants should have a way of challenging an otherwise final BVA decision on the basis of clear and unmistakable error.
We have one recommendation for an improvement to BVA. VA should remove its provisions exempting BVA from VA manuals, circulares and other Department directives as Harley was just telling you. We believe that this provision is contrary to the law, and therefore, invalid. Without furnishing any reasons for maintaining this provision in the regulation, VA has refused to remove it. We continue to urge VA to amend it so as to comply with the statutes and well-established case law.
On November 18, 1988, President Ronald Reagan signed the Veterans' Judicial Review Act into law. This law created an Article I Court with exclusive jurisdiction to review final Board of Veterans' Appeals decisions. We welcome the appointment of the Honorable William Greene to the Court last year. With this appointment brings up one of the major concerns about the Court which is also addressed in the bill H.R. 3212. Because six of CVA's current judges were all appointed within one year of each other, their 15-year terms will expire near the same time. This will result in the retirement of most of the judges and appointment of their successors within the same year.
Provisions for early retirement will stagger the turnover and allow the retention of experienced judges on the Court during the more orderly retirement and replacement process. AMVETS supports H.R. 3212, which amends the law to permit early retirement of the Court judges.
Another major problem at CVA is the undue delays of veterans' appeals. Under the Court's rules of practice, an appellant has 30 days from Court's notice of filing of the record on appeal to file the brief of appellant. The appellee, the Secretary of Veterans Affairs has 30 days after he is served with an appellant's brief to file the brief of appellee. Courts typically enforce their rules and time limits strictly. Under the Court's rules, an appellant or the appellee may be granted an extension of time for filing a brief for good cause.
Page 35 PREV PAGE TOP OF DOC The courts have held that the Government's excuse of a heavy caseload is not a good cause. Yet, the General Counsel has continued to routinely request extensions of time. In fact, the General Counsel has requested multiple extensions in most cases. The Court does not enforce its own rulings and has granted General Counsel extensions of time, even over the objections of appellants who point out the lack of any valid grounds.
To correct this problem, we believe the Office of General Counsel needs additional staffing to assign to representation of the Secretary in appeals before the Court. We have been suggesting this corrective measure for many years. It is apparent, that corrective action will never likely be taken unless the Court enforces its own rules and orders. This is an issue that Congress can take up in its oversight hearing.
As mentioned earlier, AMVETS supports H.R. 3212 and congratulates Congress for their support on this important issue. And as Judge Nebeker testified earlier, this legislation is imperative to keep from the collision course the Court is headed for.
Mr. Chairman, this concludes my statement and I will be happy to answer any questions.
[The prepared statement of Ms. A'zera appears on p. 99.]
Mr. QUINN. Thank you very much. Mr. Surratt.
STATEMENT OF RICK SURRATT
Mr. SURRATT. Mr. Chairman and members of the subcommittee, good afternoon. I am Rick Surratt with the Disabled American Veterans.
Today's appeals processes afford veterans better assurances of fair and lawful decisions on their claims than at any time in the modern history of VA. That is not because of changes in the established processes themselves. That is because Congress superimposed judicial review on the existing administrative processes. Before judicial review, VA operated its appeals system according to its own deep-set institutional views, which unfortunately compromised strict adherence to the law for what VA saw as good practice. In many areas the Court of Veterans Appeals has caused the Board of Veterans' Appeals to abandon self-serving practices and return to the letter of the law in deciding veterans' appeals. Because judicial review exists, the Board of Veterans' Appeals is no longer free to ignore veterans' evidence and legal arguments as it once did. The Board is no longer free to follow a set of unwritten rules that circumvented the law in many instances. Veterans no longer have to accept arbitrary decisions by the Board.
Page 36 PREV PAGE TOP OF DOC The Court's enforcement of the letter of the law has made the mere existence of judicial review a more effective deterrent to arbitrary decisionmaking. This new climate has not only benefited veterans, however, it has added integrity to the VA system and given VA decisions more credibility. That is not to say that all of the problems are solved.
The necessity for more thorough and better-reasoned decisions was sure to cause its own problems, such as a slow-down in case outputs in the short-term. BVA has shown signs of adjusting to the new demands and appears to be recovering from the initial sharp decline in case production. BVA has increased efficiency by realignment of its organizational structure and Congress helped by authorizing much needed additional staffing.
However, while quality has improved and production levels are rebounding, the Board has not totally cast off its old ways. Despite overall improvements, we still see an intolerable number of flawed and arbitrary decisions from the Board. The Court still reverses and remands a large percentage of the Board's decisions. That tells us that the Board needs to do more to encourage and enforce quality. Quality is the key to long-term efficiency and real customer service and satisfaction.
The Court has, on a whole, done an admirable job. We would not have seen improvements at BVA if the Court had subscribed to many of the self-serving arguments the VA made before the Court or if the Court had been timid in enforcing the law and just rubber-stamp BVA's decisions. However, in those areas where the Court has not been firm with the VA, the VA has taken advantage of the Court's leniency.
For example, appellate rules of practice allow sufficient time for the parties to make filings such as briefs. Courts typically grant additional time under exceptional circumstances only. The Court of Veterans Appeals departed from its own rules and the judicial precedent in this area of appellate practice and began granting VA's motions for extension of time routinely. VA began by requesting extensions in some cases, then quickly started requesting extensions in every case and eventually filed multiple extension motions in essentially every case.
Page 37 PREV PAGE TOP OF DOC The Court's laxity in this area sent VA a clear signal that it need not be concerned about obeying the Court's rules, and VA has shown no appreciable effort to bring itself into compliance.
In one of its recent orders the Court noted that VA has filed more than 4,000 extension motions in the last year alone. As a consequence of VA's failure to correct the problem and the Court's tolerance of it, veterans with urgent needs suffer additional delays in a process that is already protracted. For the Court to extend such special treatment to VA and acquiesce in VA's disobedience of the rules of practice makes the court appear biased. Obviously, when a court appears biased it loses some of the public's confidence and respect, and its stature is degraded. In many subtle ways, that can diminish a court's effectiveness.
The DAV and the veterans' community are concerned about the Court's willingness to let VA delay justice to suit VA's own purposes. VA has one promising and positive new initiative to properly dispose of appeals. In this early intervention program, the VA General Counsel's Office conducts a preliminary screening of cases appealed to the Court to identify the ones that should be remanded to BVA and not be defended in the Court.
Currently, about 20 percent of all the cases reviewed are found to warrant such an expedited remand. This avoids the unnecessary delay of designating the record on appeal and briefing, alleviates the need for a decision by the Court and in the process, conserves VA and court resources.
Unfortunately, VA has apparently not fully embraced this program and has not devoted sufficient resources to ensure its maximum effectiveness. To allow thorough review of all the new appeals filed each month, VA should devote more personnel to this effort.
Mr. Chairman, that concludes my statement.
[The prepared statement of Mr. Surratt appears on p. 104.]
Page 38 PREV PAGE TOP OF DOC Mr. QUINN. Thank you, very much.
Mr. McNeill, thanks for joining us.
STATEMENT OF JOHN J. MCNEILL
Mr. MCNEILL. Good afternoon, Mr. Chairman.
My remarks will be a synopsis of a more lengthy written statement, concentrating from that document more on the current state-of-affairs in the VA rather than the past history. But history is important to the subject, and accordingly, we appreciate that our written statement will be made a part of the record.
We have been asked to talk on two topics. The first is H.R. 3212, the ''Court of Veterans Appeals Act of 1998.'' We agree with all aspects of that proposed legislation, particularly the institution of a staggered retirement option. That will help ensure the maintenance of judicial experience on the Court. The second subject, concerning the impact of veterans processing by the court and the Board of Veterans' Appeals, is more complex. Quite simply, the impact has been tremendous, probably beyond any imagination at the time of the Veterans' Judicial Review Act of 1988 which established the Court. Literally from the inaugural court decision in 1989, the Court has been steeped in controversy. Many have opinions whether the Court has been good or bad for the veteran.
Let us be unequivocal in our opinion in the VFWthe Veterans' Judicial Review Act of 1988 has been, and is, one of Congress' most important pieces of legislation ever for veterans.
The Court has not created new laws or regulations, but has only highlighted past VA failures to fairly process claims, mainly from the inability to correctly apply the statutes and regulations of record through misinterpretation, selective interpretation or unawareness. Further, it took a few years of the court's existence for the VA to realize this, and that lack of realization formed the core of the claims processing timeliness and quality difficulties, such as the horrendous backlog, the high BVA remand rate, and the lengthy processing times for compensation claims.
Page 39 PREV PAGE TOP OF DOC That is the negative. The positive is that, because of the Court, a veteran now has the best chance ever for a proper and correct decision on a claim, as Congress has always intended the system to be. Further, VA is now making great strides toward changing that historically entrenched culture of autonomy.
Therefore, we still have hope for the VA. This optimism resides primarily in the many initiatives the VBA is undertaking to correct both quality and timeliness deficiencies. Four are absolutely critical to us. They are: the pre-discharge examination program for our active duty military; the post-decision review process (and, particularly, the decision review officer program); the Partner Assisted Rating and Development System, commonly known as PARDS; and, the out-basing of rating specialists in the VA medical centers.
The VA has now decided to expand the pre-discharge examination program to all military services at an additional 15 sites. This is a project that is already paying dividends for the Government. For example, the program between the Seattle Regional Office and Fort Lewis has been able to establish an average completion rate of less than 60 days from the discharge date for a final compensation rating. That figure is expected to go much lower as the Regional Office continues to refine the program. The ultimately goal is to give a rating to a veteran immediately upon his discharge.
Even more important is the quality of the rating decisions as part of the pre-discharge program. That quality is easily achieved because the VA, through the ready cooperation of the military, has a captive audience for their outreach briefings, immediate and fresh access to the service medical records, and direct communications with the applicants in assisting them in the proper techniques for filing a claim.
Post-discharge programs have also been instituted by the VA. PARDS was initiated at the St. Petersburg Regional Office with the idea of rendering very quick decisions on claims submitted with accompanying complete evidentiary documentation. The initial goal was 19 days for claims not requiring a compensation and pension examination, and 45 days for those that do. The program has now progressed so well that the average decision time for a PARDS claim is now 5 days. Even better, less than 3 percent of PARDS claims in St. Petersburg continue to the beginning appellate stage with a Notice of Disagreement.
Page 40 PREV PAGE TOP OF DOC The most significant initiative that will eventually impact the most on the high remand rate and the quality of regional office decisionmaking is, in our opinion, the post-decision review process instituted as part of the VBA's Business Processing Reengineering. This included the important related decisions to delegate difference of opinion authority to the regional offices and the establishment of the Decision Review Officer.
While it's too early to form a conclusive opinion on the possible success of the program since it only started last December 1, and it's a 1-year test program, our service officers at the 12 Regional Offices test-site locations are already universally praising the potential of the program as a means to drastically reduce the amount of appeals on VA rating decisions. That is because of the early involvement by the DRO in informally communicating with the veteran and representative, techniques and requirements to successfully support a claim, and if need be, direct explanation for the reasoning for denial of any claimed issues.
This is really an expansion of the widely successful Hearing Officer program as suggested by both the Veterans' Claims Adjudication Commission in their 1997 report and Congress in review of that report.
The fourth initiative is one being done essentially on some Regional Office Directors' own volition and that is the out-basing of rating and adjudication personnel in VA medical centers. This initiative, which was first started by the Chicago Regional Office Director has objectively shown to basically eliminate the problem of inadequate and/or incomplete compensation and pension examinations. With inadequate examinations being the significant issue for most BVA remands, it would seem reasonable that all Regional Office directors will soon adopt this initiative.
Accordingly, these four initiatives have put the VA on the edge of a major breakthrough toward making the agency a model of government efficiency and service to its clientele. There is one major obstacle, however, and if not corrected or checked will sidetrack any further forward movement. The BPR initiatives just described have occurred, for the most part, through internal diversion of FTE resources and at a time when the VBA has also been suffering significant reductions in FTE.
Page 41 PREV PAGE TOP OF DOC As an example, lack of available resources is the only reason given by Regional Office directors precluding their ability to out-base rating personnel in medical centers. Yet, the administration, as you just so recognized, Mr. Chairman, came forward with a 125 reduction as part of their budget proposal this year. That recommendationwhich we are happy to realize that you, Mr. Chairman, now basically have checkedwould basically sidetrack any BPR initiatives that was undertaken by the VBA. Indeed, a recommendation in the 1999 veterans' independent budget and policy is for an increase of 500 FTE for those programs. That FTE increase must be used to place rating specialists in the VA medical centers; to increase the number of DROs (Decision Review Officers); and, to recruit new veterans' service representatives to rectify the past hiring freezes.
Essentially, Mr. Chairman, while we appreciate that you had indicated a 175 increase, we still believe that 500 is the figure, and that is not a whimsical figure for the reasons that I just stated.
[The prepared statement of Mr. McNeill appears on p. 116.]
Mr. QUINN. Thanks very much for your comments. Mr. Russo.
STATEMENT OF WILLIAM F. RUSSO
Mr. RUSSO. Mr. Quinn, members of the subcommittee, Vietnam Veterans of America believes that the staff and Members of the Board of Veterans' Appeals are generally competent and dedicated. Nevertheless, the past year without a permanent chairman seems to have caused the Board to lose its focus on its mission of providing prompt, fair decisions to our Nation's veterans.
Page 42 PREV PAGE TOP OF DOC This past April, the Board's staff confirmed our assessment that, when a case is remanded by the Court of Veterans Appeals back to the Board, it takes the Board about 10 months to render a decision. This is much longer than the Board takes to render a decision in a case coming from the Regional Office. The discrepancy is inexplicable since most court remands are based on a joint-motion or are the result of a short-order by the Court. These cases should take about a few hours for the Board to decide and to process, not 10 months.
We brought this matter to the attention of acting chairman, Richard Standefer, and I'm pleased to say that he, that day, disbanded the unit within the Board that was in charge of processing these cases. Now, these cases come from the Court back to the individual Board member who erroneously decided them for that Board member to make a new decision.
In addition, we note that this practice and these problems directly contravene Congress' order in the 1994 Veterans' Benefits Improvement Act. In that act, Congress said that all remanded cases from the Court back to the Board and then, from the Board back to the Regional Office must be given expeditious treatment, and Congressman, 10 months is not expeditious treatment.
Other problems the Board is currently having is that it still gets reversed in over half the cases that are appealed up to the Court. So the Board is still making major errors in over half of the decisions that go up to the Court, and that is an unacceptable error rate as Mr. Surratt stated. We ask, why is the Board still failing in these areas? And our assessment is that the Board is wasting its time in other unproductive ways, one of which we've talked about here today.
First, the Board reviews every single attorney fee agreement that is filed with the VA which is an action that is not required by any law or regulation. It's frankly a waste of the Board's time. The second example of the Board wasting resources is that within the last few months the Board has spent hundreds of hours drafting regulations that would prohibit the VA from withholding any attorney fees as part of an award to an attorney.
Page 43 PREV PAGE TOP OF DOC The VA received over 60 comments from individuals opposing these proposed regulations, and that, in itself, shows that these regulations were very ill-conceived, and frankly, a waste of time. The only thing they might accomplish is to discourage attorneys from practicing before the VA.
One of the champions of Veterans' Judicial Review, Representative Lane Evans of this committee, has introduced legislation which would require the VA to pay these contingent attorney fees out of past-due benefits. VBA strongly supports this legislation and the hard-fought of veterans to hire an attorney if they so choose.
Now the last area in which we feel the Board is wasting its time is in collusion with Group 7 of the VA General Counsel's Office as we've talked about here today. If you'll notice the attachments to my testimony, this issue has been discussed among veteran attorneys including articles in the Federal Bar Association's newsletter and it's been alleged that this practice violates the code of judicial conduct and the model rules of professional conduct. We also feel it causes the public to lose confidence in the independence of the Board. And finally, it's probably a waste of the Board's valuable time.
And to follow-up on one of the questions that was asked earlier in a statement by the Board that this litigation support group is separate and independent from the Board members that make the decisions: Based on my personal experience, there is frequently turnover of staff between these Board membersor I should say, the Board members' staffand the litigation support staff. So there is definitely an overlap and an exchange of staff, and I believe the Board would be able to confirm that. I would agree with Congressman Filner's statement that these people working down the hall and speaking with each other about cases, I'm sure that occurs. And I noticed the Board did not, in any way, say that this practice does not occur or that there's any rules to prevent that kind of conversation.
With respect to the Court of Veterans Appeals legislation at issue today, we do support that. But we feel that there's additional legislation that would improve the Court's handling of cases. Specifically, we note that the Court very rarely actually grants benefits to a veteran. It's only happened in a handful of cases over these 7 years the Court's been in business. Instead, the Court has usually remanded the case back to the Board. And we give suggestions in our testimony of ways that the Court's authority could be expanded to allow it to more easily grant the benefits outright rather than forcing the veteran to wait while his case is on remand.
Page 44 PREV PAGE TOP OF DOC In closing, I see that my time is up but, I would like to add that Vietnam Veterans of America feels that a lot of these problems in the appeals system can be improved or even solved if Congress would pass legislation allowing a veteran to hire an attorney of his or her choice at the VA
Regional Office level and at the Board of Veterans' Appeals. That is part of what judicial review is all about. Attorneys are not actively representing veterans because there's no incentive to do so. The Court of Veterans Appeals, there is still a pro se rate of over 50 percent, and that's unacceptable.
Thank you very much.
[The prepared statement of Mr. Russo appears on p. 120.]
Mr. QUINN. Thank you, Mr. Russo, and thank you to all five of our witnesses on this panel.
We're discussing H.R. 3212 this afternoon, but the discussion has gone way beyond all of that, that's for certain. I appreciate the discussion on all of these things that deal with veterans. But we started with testimony from Mr. Thomas, this wayI have a questionand I'm going to work the opposite way because, Mr. Russo, your final comments hit on my question. After reading your testimony and the others, while we're talking about the Office of the General Counsel and this counsel and that counsel and court cases and everything else, we've not really talked about when an attorney could become involved.
It's my understanding that in the case of a veteran, at least right now, his or her own attorney can't become involved until after a final Board decision is made. Is that correct, in your opinion?
Mr. RUSSO. Correct.
Mr. QUINN. And so my question was going to be, is it your opinion that veterans should be allowed to involve his or her attorney of choice earlier in the process? You've answered that already, I think. And further, then my question would be, how early in the process before we start wasting veterans or others time and money?
Page 45 PREV PAGE TOP OF DOC Mr. RUSSO. Yes, Mr. Chairman, our position is that at least after the VA has initially denied a claim.
Mr. QUINN. Say it again, I'm sorry.
Mr. RUSSO. After the VA Regional Office has initially denied a claim that the veteran or their dependent ought to be able to hire an attorney. That would avoid a situation where an attorney obtains, let's say, a portion of past-due benefits in a case that the veteran could have filed on his own or with a service organization and been automatically granted. But once the VA has denied the claim, that veteran should have the right, if they choose, to hire an attorney.
And we've talked here about all these lawyers having these back-door discussions, the veteran ought to be able to have his own lawyer, too.
Mr. QUINN. Well, and I guess that's where my question came from. And believe me, I'm not a lawyer and I'm not promoting the fact that we ought to be a suit society and that you ought to have lawyers involved in everything you say and do, because in many areas, there's more of that than we need.
But for all of these coziness questions and collusion questions and back-door discussions that the veteran ought to be involved at some point, it seems to me, earlier, than after it's too late it seems almost, to me.
Mr. RUSSO. Well, that's right. If the only time you can get a lawyer is at the court level, at that stage, as we've heard today, it's too late to add any new evidence to the record. And a veteran needs to have a lawyer to assist him in gathering the evidence that can support his claim whether that's at the Regional Office or at the Board level.
Mr. QUINN. Correct. And let me just addthank you, Mr. Russo. And I would ask if any of the others want to just comment briefly on my question.
Mr. McNeill, should that be allowed to happen sooner, do you think?
Page 46 PREV PAGE TOP OF DOC Mr. MCNEILL. Mr. Chairman, I think that if a veteran wants to get his next door neighbor as a representative at the beginning stage of a claim, we shouldn't be presumptuous enough to say they should not do that. However, that's a simple answer to a very complex problem. Now you have the concerns about who collects the money? Who collects the fees? Is the VA going to become a collection agency which they are now in a lot of cases? Who is going to provide the FTE to do that? How do you provide safeguards in the system? So many other questions are involved in that process.
The fact is that the veteran now is getting involved very, very early in the adjudication stage with the Decision Review Officer. They do not have to wait to take jurisdiction at the time of NOD. They can go immediately upon the rating decision. So that whole process has been moved up. But the real critical thing what that does is that grabs the veteran and his representative and puts a burden on them to have face-to-face direct communications with the VA decisionmaker. And all three of them now are acting together.
I would prefer that we start working on the appeals and miscommunications earlier in the process before we really became concerned about who does what in the appellate phase.
Mr. QUINN. And in your oral testimony here earlier, too, you did point out that, as bad as parts of it sound, it's probably the best it has been, I guess, in some sense.
Mr. MCNEILL. Oh, yes, I think there's no doubt. I just came back from Seattle, and I spent a day at Fort Louis and they have a commendation from General Shali Kashwili up on the wall because he went through the predischarge program there.
Mr. QUINN. Is that right?
Mr. MCNEILL. But even more important was the ''buck'' sergeant who said this is the greatest thing that's happened to him.
Page 47 PREV PAGE TOP OF DOC Mr. QUINN. Thank you.
Mr. Surratt, anything to add?
Mr. SURRATT. Yes, the DAV is opposed to changing the law on admitting attorneys, and the reason for that, is that, first of all, envision the traditional legal process where the fact-finder is passive and it's up to the attorneys on each side to discover the evidence, submit that evidence, and plead the law. The administrative process is really much unlike that. In fact, the processes are designed to allow a veteran to receive benefits to which he's entitled without having to pay a lawyer to get them.
The system is set up where VA has a duty to assist the veteran in gathering the pertinent evidence. VA has the ultimate duty to ensure that all pertinent laws and regulations are applied. So, the VA administrative process is very much unlike the traditional legal setting where the fact-finder is passive and doesn't help in those instances.
We believe this would cause a lot of additional problems. Service Officers, who work for veterans' organizations do a lot of hand holding, if you will. Veterans call up; it's therapeutic. They need help in getting their medicationslots of things that aren't fee producing. They get small awards like non-service connected burial allowance. You would have to wonder if an attorney helped file an application for that if the attorney's fee wouldn't take up all the allowance.
So, quite frankly, we don't think veterans ought to have to pay for attorneys to get their benefits. And, we think, if you were to do that, that would be an admission that the current non-adversarial system has essentially failed.
Mr. QUINN. And is not at work.
Mr. SURRATT. Right. We'd like to see the system fixed.
Mr. QUINN. Rather than put anymore burden financially or time-wise on a veteran.
Page 48 PREV PAGE TOP OF DOC Ms. A'zera.
Ms. A'ZERA. Well, I would just agree with what Rick just said.
Mr. QUINN. Excuse me. You would just agree or disagree?
Ms. A'ZERA. No, I agree with the DAV position on that.
Mr. QUINN. Thank you.
Ms. A'ZERA. And also, in the report of the Chairman on the Board of Veterans' Appeals, if you look in there on statistics in the back, the line for attorneys was pretty much the same outcomes that they got from the VSO's representation. So, it doesn't improve the process, and I think it should be a free process.
Mr. QUINN. Good point. Thank you.
Mr. THOMAS. I think that I have to agree with Mr. Surratt, also. I believe that our VSO's Service Officers do an exceptional job. From a personal note, I know my Service Officers bent over backwards and went to the nth-degree to try to accommodate, and I don't think a law needs to be changed in that area.
Mr. QUINN. Okay. Thanks. Very conclusive responses. I appreciate it.
Mr. Filner. Thanks, very much.
Mr. FILNER. Just a couple of things very quickly. Several of you pointed out that by practice or by their own regulations the Board is not bound by the manual circulares. That sounds strange to me. But why does the VA argue thatwhat do they say to you when you have told them this is strange?
Mr. SURRATT. They really don't have a good reason. Mr. FILNER. They have not defended that?
Mr. SURRATT. No, in fact, the Court has ruled in several cases that they are bound by manual
Page 49 PREV PAGE TOP OF DOC Mr. FILNER. Should there be a legislative remedy, then, if they are not going
Mr. SURRATT. Well, it certainly would be preferable if the VA would just voluntarily amend the rule. But, we've asked them to do that, and they've declined. The legislative remedy could certainly fix it.
Mr. FILNER. I'd like to hear what they say because your arguments sound very persuasive.
Mr. SURRATT. You can't have a case decided by two different sets of rules.
Mr. FILNER. Right. It just sounds obvious to me.
On the extensions of time, why has that become the practice? Why have they said that they are doing that?
Mr. SURRATT. Why has the Government said that?
Mr. FILNER. Yes.
Mr. SURRATT. Because of understaffing and
Mr. FILNER. I was very interested in your defense of the existing system without attorneys. Your conception of the system is, as you phrased it, an advocate of the veteran, a fact-finder and then, an advocate. I don't know what the law says, but let's assume that you're right. And I assume up to the Board level, and including the Board level, the case argues even more strenuously, there should be non-contact between them and the appeal because their's is an adversary process by the way it is set up.
If your conception of the system is accurate as it was designed to be set up, then, you can't have an advocate or a fact-finder be involved, in the telling them what to do later because then, they become adversaries. You have transformed them into adversaries. So it seems that if your conception is accurateand, I don't know what the others would saythen, it makes an ever stronger case for there to be no collusion or
Page 50 PREV PAGE TOP OF DOC Mr. SURRATT. I'd like to comment on that, if I may?
Mr. FILNER. Please.
Mr. SURRATT. I once practiced before the court, and admittedly, this was a long time ago and the Board may have changed its internal procedures. But the attorney for the General Counsel told me that the Board member wouldn't agree to a settlement. Now, again, that may have changed. But, I don't think there's any necessity for a conversation between the Board, in any sense, and the General Counsel because, after all, the Board is supposed to review the record and render a decision that explains itself well-enough to where anyone can understand it, including the veteran. And if a veteran is supposed to be able to understand the factual and legal bases of the decision, certainly, the General Counsel's attorney should be able to.
Mr. FILNER. I agree. One last question: I'm just amazed at the percentage of remands. Does someone have it at their fingertips what percentage of cases is remanded now?
Mr. SURRATT. From the Board or from the Court?
Mr. FILNER. From the Court to the Board.
Mr. SURRATT. It's a mixture of some remanded in part, and so forth, but it's a very
Mr. RUSSO. Over 50 percent, certainly.
Mr. FILNER. And someone else said there's only a handful of cases in favor of the veteran. So, does that mean 40 to 45 percent are against the veteran at the court level50 percent remanded and 5 percent for the veteran? Is that the case roughly?
Mr. SURRATT. A very few number are really affirmed, that is, the BVA's decision is upheld. I think it's something likeI have the statistics here. I think it's aboutI'm looking at the Court's report here
Mr. FILNER. I guess the only implication or the only conclusion I could draw from those statisticsas I heard, remands are based on errors or misunderstandings or unclarities or whateverno matter what you all have said, at least, as a courtesy to the Board, the facts do not seem to indicate that the Board is doing a good job. Unless the appeals are such a small percentage of the total cases. What percentage of the total cases are appeals?
Page 51 PREV PAGE TOP OF DOC Mr. SURRATT. Well, it's a very small number but it's still a representative sample. I think what we're saying is that the Board is much improved with judicial review as compared to before, but it still has a long ways to go, especially when the Court has to remand over 50 percent of the cases.
Mr. FILNER. It seems to me, as a committee, we have to figure-out, and I don't know the answer and you can help us later, but how do we, beside give them more resources how do we exercise our oversight function and try to improve that situation?
Mr. MCNEILL. Well, I think you've already started with getting the 175 FTE increase. I think that's a big start because I think everyone's overworked in the system.
But to answer the questionnot to defend the VAbut we've got to understand there's a great time-lag by the time that case gets to the Court and then, going off to the Regional Office for a decision maybe is 2 to 3 years down the road. And they might have made improvements since that time. So we've got to consider there is a significant time-lag involved.
I don't think the issue is so much important for the court remands as it is for the BVA remands. I think that's really the crucial issue.
Mr. FILNER. And what percentage of that
Mr. MCNEILL. That was 45.7 percent in fiscal year 1997. Now it's down to 41 percent for the first half of this year. But that's far from their BPR goal in 2002 of 20 percent.
Mr. QUINN. The gentleman's time is expired. We're going to yield to Mr. Rodriguez.
Mr. RODRIGUEZ. Let me get back onmy impression was initially that 40 percent of the time the judges would spend on appeals. Is that correct? At least, that's what I heard from them, that 40 percent of their time was spent on appeals. Then, if half of them are errors, if 50 percent is or in errors, then we've got a serious problem there.
Page 52 PREV PAGE TOP OF DOC The other mention I keep hearing isand I understand that you might need more support, but I'm entitled to so many workers and I've got about 17 or 18 that we're entitled. Ten of them are just doing casework back home; 25 to 30 percent of them havethey've got over 200 cases a piece; about 30 percent of them are VA cases that, for some reason, the VA staff is not doing the sufficient work that needs to be done if they're coming to us with those problems. And I hear you say you need more resources. I can ask for more resources, but I don't think I'm going to get 10 more staff to handle that.
I'm wondering if maybe putting some time limits in some of the recommendations to let them know that they need to make a decision within a certain period of time when it reaches that court. I don't know what's appropriate, 6 months or a yearversus having3 years is ridiculous to wait on an appeal, even a whole year for the initial and especially since half of them have some difficulties and problems.
Mr. QUINN. Excuse me, sir. It's just that you had asked a question to one of the individuals.
Mr. RODRIGUEZ. Yes.
Mr. RUSSO. I'd like to respond to it, if I may. Congressman, the answer is that the law is already on the books with respect to a large part of the problem you talked about. And that is the Veterans' Benefits Improvement Act, Congress required VA to provide expeditious treatmentwhatever that meansof remanded cases. It's clear based on the statistics that both the Board of Veterans' Appeals and, in fact, the VA Regional Offices are not complying with thatthey're just not.
Mr. RODRIGUEZ. Seem like that is not correct. I'm not an attorney but I know that when a system has failed and when the executive branchthat's your areahas also failed to respond we've got to give them that alternative; go to the judiciary. That is, get an attorney as quickly as possible, if that's the only recourse, unless you can come up with a better system that's more responsive.
Page 53 PREV PAGE TOP OF DOC Mr. SURRATT. Congressman, I would have to sayI will have to be a little critical of the court herebut, the Court has the authority to compel action unreasonably delayed or unlawfully withheld under the All Writs Act. Several parties have brought cases before the court to force the VA to do something that it wasn't doing or wasn't doing after years. Now, the Court's been very reluctant to exercise that authority. Quite frankly, we think they've been too reluctant.
Mr. RODRIGUEZ. Legislatively, I don't know if we can force the court to when they get a case that it be dealt with within a certain period of time versus the amount of time that
Mr. MCNEILL. I think a lot of the initiatives by the VA are putting the burden on the VSO's to be better at their jobs, too. And I think that we have to get a three-pointed partnership going here. I think that we've been kind of, in the past, sitting back and kicking our heels up and letting the VA run with the ball and see whether they make a decision.
But, I think, legislating untimeliness can be a very dangerous thing, especially if you want to get an original compensation decision done in 90 days. If you have 91 days, you violate the law. Then also, the VSO representative is violating the law and the rating specialist is violating the law, and it could be good reasons why they don't get it done in 91 days. The veteran, himself, could have missed three C&P examination notices, for example.
We've got to remember too, that the veteran does have a slight burden here to respond to the requests from the VA. So, I think that probably legislating timeliness can be a very dangerous thing.
Mr. RODRIGUEZ. I know it is and I would hate for that to occur. But, there's a great deal of frustration out there. The VA hospital was surprised to hear the frustration of some of them. You're welcome to come to any of my hearings in August. I want to have another 16 like I did last year, and you can hear the darned frustration of some of those individuals in terms of having to deal with this situation.
Page 54 PREV PAGE TOP OF DOC Somehow, we need to come to grips with that. And I can yell that I need more staff too, to deal with it, but apparently, they're coming to me because the system has failed somewhere in the process.
Mr. SURRATT. The key to solving this whole problem, we've maintained, is quality. And if you get it right the first time the resources they have may very well be adequate to do the job. But when you have to do it four or five times to get it, obviously, you're going to overload the system.
Mr. RODRIGUEZ. And that applies to both the VA documentation and the quick, I presume, judge decision on the case.
Mr. MCNEILL. Our point about additional resources, in fact, is that over the last 3 years the VBA, itself, has suffered well over a 2,000 FTE reduction. So, I think, the pendulum has swung too far, is our point. We've cut too far.
Mr. QUINN. Mr. Reyes.
Mr. REYES. Thank you, Mr. Chairman.
I would just like you to comment on my earlier observation that it seems like there isn't any willingness to give out information to veterans or their attorneys or their representatives in the context of what some of these rights or appeals they might have.
Mr. MCNEILL. I think that's changing a lot. I think with the decision review officers, the whole concept is on direct communications. It's just not me speaking. It's our 12 Service Offices at the Regional Office sites involved in the DRO process who are praising it. The fact is, early involvement and they're doing it by such things as phone calls. They'll call the veteran up and say come on in, let's talk about what you're trying to do here. And the face-to-face communication is a more informalized system that is getting away from the old formal system.
Time will tell. We've still got to the end of November to see how the test program fares for the 12 sites. But I think that we might have something pretty good here.
Page 55 PREV PAGE TOP OF DOC Mr. RUSSO. I'd like to comment on that. Mr. Reyes, to its credit, the Board of Veterans' Appeals has begun putting out a pamphlet that it sends to every veteran who appeals his case up there. It's called ''Understanding the Appeals Process.'' I'm sure Mr. Standefer can provide a copy of that document. It explains, in very simple language, your appeal rights and, I believe, it includes information on how to expedite your claim if you have important circumstances.
Mr. SURRATT. I would just like to comment on expediting the claim. I know you had a question about that earlier. Unfortunately, most of the appellants before the Board are elderly or very ill. And, a large proportion under a standard that, if you're needy, or you're elderly, or you're very ill, many of them could request expedited decisions. Obviously, in certain cases that's appropriate, but the real thing that would solve all of this is to get the quality straightened out, and thereby, get the timeliness straightened out, and make decisions in a reasonable amount of time rather than let them sit for the years that you heard acting chairman, Standefer, talk about.
Mr. QUINN. Before we go to Mr. Mascara, Mr. Rodriguez, I made mention that some of that paperwork Mr. Russo talks about in terms of pamphlets that have been prepared by the Board of Veterans' Appeals may be helpful to you at some of your meetings in August, may be helpful to some of those staff members of yours that now have over 200 cases, because I've talked to some of them. I think you're trying to send some of them down to me down the hallway there once in a while. (Laughter.
But we're happy to do that. My Buffalo friends won't mind. But seriously, if there is some paperwork out there that's helpful, pamphlets, mailings, otherwise, I don't want to speak for you, it may be helpful to get to everybody on the subcommittee with what looks like might help you out at some of those town meetings to get some folks doing their own work if they're able to.
Page 56 PREV PAGE TOP OF DOC Mr. Mascara.
Mr. MASCARA. Thank you, Mr. Chairman.
I resist the temptation to continue to pursue the coziness-bit, but having read Mr. Thomas, your statements and after hearing such words as, ''raises suspicion,'' ''collusion,'' and on page three of Mr. Thomas's statement, one matter that gravely troubles PVA is the involvement of the BVA in defense of its decisions before the CVA.
''Attorneys and VA professional staff, Group 7, cannot agree to a joint motion for remand before the Court without first obtaining the approval of the BVA. Communications between the BVA and Group 7 are in secret, unavailable to veterans and his or her representatives.''
I didn't read this portion last night. And I used the word ex parteand I'm glad to see it here because I used the word properly, apparentlythat they were meeting without benefit to the veterans whose case was being decided. As you say here, ''the BVA is a quasi-judicial body in its participation in litigation before the CVA can be likened to the United States District Court judge attempting to influence how his or her opinion is decided on appeal to the circuit court. And this sort of ex parte contact is unacceptable under any judicial standard.''
And the judge took umbrage. But there was no direct affront to him and I didn't mean it that way. But, I've read enough last night and while I was here today to give me cause for concern about the entire procedure. Someone needs to address this. Is it or isn't it happening? And if it is happening, how does that affect the veterans in their appeals? Does anybody want to comment?
Mr. THOMAS. Well, we're greatly concerned about that. Those are our beliefs and this is the reason why we brought it forward to this committee in hopes that there will be some investigative process to determine whether or not this, in fact, is true. It is our belief that it is and, as such, we believe it should be stopped.
Page 57 PREV PAGE TOP OF DOC Mr. MASCARA. I agree, it's reprehensible, it's outrageous, and Mr. Chairman, I think we need to pursue this as a member of this committee.
Mr. QUINN. Thank you, Mr. Mascara. And we appreciate your preparedness for these meetingsall of us do, we really do.
Bob Filner and I have just been having a discussion. Thank you all. This has been a helpful discussionmore of a discussion than a hearing. And I want to say thanks to everybody who was involved here. We follow the rules but sometimes we wander a little bit here and there and ask you for information you didn't come prepared with and ask people to come to the witness table who weren't prepared to do that. But we only have an interestI think, all of usand that's to serve veterans who served their country, in the end.
Bob and I have been talking about having an opportunity to meet with the Office of General Counsel over the next couple of weeks or so, in our office, not in a hearing setting. We'll be giving you a call to do that. And I absolutely think that we need some follow-up on a hearing on this topic to go a little bit further, so we'll be in touch with the members of the subcommittee.
Alsoand I'll yield to Mr. Rodriguez in just a secondI also want to thank the members, Mr. Standefer and others from your staff who have remained here this afternoon. Sometimes we get those hearings where everybody finishes and runs right out the door. To hear this part of the discussion, I know, is helpful to you. I know, it's helpful to us and we appreciate you and your staff and others who are with you for staying today. Thanks for doing that.
Mr. RODRIGUEZ. I'm not sure exactly where we might be able to get this information but I was wonderingand I hope you take it in the light that it's madebut, I recognize, especially those judges that run for re-election, there's always comments about their work ethic, and I was just wondering if we could assess, in terms of the workload, of maybe some of the judges that are out there and how much work they might be doing or not doing in comparison?
Page 58 PREV PAGE TOP OF DOC Mr. QUINN. I think staff on the subcommittee could probably help you with that. And according to what the members of the first panel said here today, they seemed very, very willing to work with us for any kind of that information, statistics-wise.
We're thanking everybody who attended and who helped us with questions and answers today.
[Whereupon, at 4:15 p.m., the subcommittee adjourned subject to the call of the chair.]