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Rephrase the question: I was diagnosed with apnea in service and received a CPAP machine, but the claim was denied in 2008. Should I refile?
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Rephrase the question: I was involved in a traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?
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Most Common VA Disabilities Claimed for Compensation:
You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons …Continue reading
Statement of Barton F. Stichman -
Joint Executive Director
National Veterans Legal Services Program
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
Thank you for the opportunity to present the views of the National Veterans Legal Services Program (NVLSP) on the current process by which appeals of VA benefit claims are adjudicated and its impact on veterans. This testimony focuses on the two major tribunals that decide appeals of VA benefit claims – the Board of Veterans’ Appeals (BVA) and the U.S. Court of Appeals for Veterans Claims (CAVC).
NVLSP is a nonprofit veterans service organization founded in 1980. Since its founding, NVLSP has represented thousands of claimants before the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims. NVLSP is one of the four veterans service organizations that comprise the Veterans Consortium Pro Bono Program, which recruits and trains volunteer lawyers to represent veterans who have appealed a Board of Veterans’ Appeals decision to the CAVC without a representative. In addition to its activities with the Pro Bono Program, NVLSP has trained thousands of veterans service officers and lawyers in veterans benefits law, and has written educational publications that thousands of veterans advocates regularly use as practice tools to assist them in their representation of VA claimants.
My testimony today is informed by the widespread frustration and disappointment in the VA claims adjudication system experienced by disabled veterans and their survivors. They face a number of serious challenges at both the BVA and the CAVC. As we describe below, there are several significant problems that cry out for a legislative or policy fix.
A. The Longstanding Delay in Forwarding Appeals to the BVA
One of the reasons for the unreasonably long delays that occur in VA decision-making is the long time it takes for VA to forward an appeal to the BVA for a decision. This interval occurs after (a) the veterans files his or her claim; (b) the regional office (RO) issues a decision denying the claim; © the veteran files a notice of disagreement with the RO decision; (d) the RO issues a statement of the case (SOC); and (e) the veteran files a VA Form 9 (entitled “Appeal to the Board of Veterans’ Appeals”) on which the veteran states whether he or she wants the Board to decide the appeal based on the record or after a BVA hearing.
The Board reported in its FY2006 Report (at 16) that it took an average of 489 days (one year and four months) after the filing of the Form 9 appeal for the RO to “certify” the appeal (that is, to forward the VA claims file to the BVA for a decision). In its FY2008 Report (at 19), the Board reported that the average time from filing a Form 9 appeal to certifying the appeal had increased to 563 days (one year and nearly seven months).
This subcommittee should investigate why there is a 563-day time lag. But NVLSP is already aware of one of the major reasons for this large time lag: the VA policy that governs what takes place if the claimant submits additional evidence after the filing of the Form 9, but before the appeal is certified to the Board. While veterans wait for months on end for their case to be sent to the BVA, they often decide to submit additional evidence in support of their claim. Since they have already appealed to the BVA, they often assume that this evidence will first be reviewed by the BVA. Yet, VA policy is that whenever the veteran submits new evidence during this period, the case is sent to an RO adjudicator who reviews both the new evidence and the claims file and prepares a new decision in the form of a Supplement Statement of the Case (SSOC).
Then, if the veteran submits additional evidence after the SSOC, the case is again sent to an RO adjudicator to review the new evidence and the claims file and prepare yet another SSOC. In some cases, the VA has taken the time to prepare four or more SSOCs before the case is forwarded to the BVA for a decision.
This VA policy should be changed. Much time and tens of thousands of VA work hours per year would be saved if VA regulations and the Form 9 were amended to explain that any evidence submitted with or after submission of the form will be forwarded directly to the Board and will not considered by the RO unless the claimant or the claimant’s representative specifically elects to have the additional evidence considered by the RO.
B. The Hamster Wheel
For many years now, those who regularly represent disabled veterans before the BVA and CAVC have been using an unflattering phrase to describe the system of justice these veterans too often face: “the Hamster Wheel.” This phrase refers to the following common phenomenon: multiple decisions are made on the veteran’s claim over a period of years as a result of the claim being transferred back and forth between the CAVC and the BVA, and the BVA and the RO for the purpose of creating yet another decision. The net result is that frustrated veterans have to wait many years before receiving a final decision on their claims.
There are at least three aspects of the BVA’s and CAVC’s decision-making process that contribute to the Hamster Wheel phenomenon: (1) the high error rate that exists in BVA decision-making, which delays the decision-making process by requiring disabled veterans to appeal to the CAVC to correct these errors, which, in turn, leads to further VA proceedings on remand; (2) the policy adopted by the CAVC in 2001 in Best v. Principi, 15 Vet.App. 18, 19-20 (2001) and Mahl v. Principi, 15 Vet.App. 37 (2001); and (3) the CAVC’s reluctance to reverse erroneous findings of fact made by the Board of Veterans’ Appeals.
Contributor #1 to the Hamster Wheel:
The High Error Rate at Board of Veterans’ Appeals
The most prominent fact in assessing the performance of the Board of Veterans’ Appeals is the track record that Board decisions have experienced when an independent authority has examined the soundness of these decisions. Congress created an independent authority that regularly performs this function – the U.S. Court of Appeals for Veterans Claims. Each year, the Court issues a report card on BVA decision-making. This annual report card comes in the form of between 1,000 and 3,600 separate final judgments issued by the Court. Each separate final judgment incorporates an individualized judicial assessment of the quality of a particular one of the 34,000 to 44,000 decisions that the Board issues on an annual basis.
For more than a decade, the Court’s annual report card of the BVA’s performance yields the following startling fact: of the 23,173 Board decisions that the Court individually assessed over the last 14 years (that is, from FY 1995 to FY 2008), the Court set aside a whopping 76.4 percent of them (that is, 17,698 individual Board decisions). In each of these 17,698 cases, the Court set aside the Board decision and either remanded the claim to the Board for further proceedings or ordered the Board to award the benefits it had previously denied. In the overwhelming majority of these 17,698 cases, the Court took this action because it concluded that the Board decision contained one or more specific legal errors that prejudiced the rights of the VA claimant to a proper decision.
By any reasonable measure, the Court’s annual report card on the Board’s performance has consistently been an “F.” But an equally startling fact is that despite a consistent grade of “F” for each of the last 14 years, no effective action has ever been taken by the management of the BVA to improve the Board’s poor performance. Year after year, the Court’s report card on the Board has reflected this same failing grade.
To formulate an effective plan to reform the Board and significantly improve its performance requires an understanding of the underlying reasons that the Board has consistently failed in its primary mission (i.e., to issue decisions on claims for benefits that comply with the law). Over the last 20 years, NVLSP has reviewed over 10,000 individual Board decisions and thousands of Court assessments of these decisions. Based on this review, NVLSP has reached three major conclusions:
1. The Board Keeps Making the Same Types of Errors Over and Over Again
The decisions of the Board and the final judgments of the Court reflect that the Board keeps making the same types of errors over time. For example, one common error involves the type of explanation the Board is required to provide in its written decisions. When Congress enacted the Veterans’ Judicial Review Act of 1988, it expanded the type of detail that must be included in a Board decision to enable veterans and the Court of Appeals for Veterans Claims to understand the basis for the Board’s decision and to facilitate judicial review. See 38 U.S.C. § 7104(d).
The Board has consistently been called to task by the Court for faulty explanations that violate 38 U.S.C. § 7104(d). These violations fall into several common patterns. One pattern is that the Board often does not assess or explain why it did not credit positive medical evidence submitted by the claimant from a private physician, while at the same time expressly relying on a negative opinion provided by a VA-employed physician. The problem here is not that the Board decided to credit the opinion of the VA physician and discredit that of the private physician. The problem is that the Board never explained its analysis (if indeed, it had one) of the private physician’s opinion in the first place.
Another common pattern involves lay testimony submitted by the claimant and other witnesses. Despite the statutory and regulatory obligation (38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102) to give the veteran the benefit of the doubt in adjudicating a claim for benefits, in many of the Board decisions that have been set aside by the Court, the Veterans Law Judge has refused in his or her written decision to assess, no less credit, this lay testimony. The decisions of the Federal Circuit and the Court of Appeals for Veterans Claims in Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), and Kowalski v. Nicholson19 Vet. App. 171, 178 (2005) chronicle this refusal to analyze the validity of lay testimony.
Sometimes the lay testimony that the Board refuses to analyze involves what happened during the period of military service. The underlying philosophy in these Board’s decisions appears to be: “If the event is not specifically reflected in the existing service medical or personnel records, we don’t need to assess the lay testimony”–no matter what lay testimony has been submitted.
Sometimes this lay testimony involves the symptoms of disability that the veteran experienced following military service. Despite the legal obligation to consider lay evidence attesting to the fact that veteran continuously experienced symptoms of disability from the date of discharge to the present, the Board often denies the claim on the unlawful ground that the evidence in the record does not show that the veteran was continuously provided medical treatment for the disability, without assessing the lay evidence of continuity of symptomatology.
Another common Board error is to prematurely deny the claim without ensuring that the record includes the evidence that the agency was required to obtain to fulfill its obligation to assist the claimant in developing the evidence necessary to substantiate the claim. The statutory duty placed by Congress on the VA to provide such assistance is a fundamental cornerstone of the nonadversarial pro-claimant adjudicatory process. Unfortunately, the Board often fails to honor this very important obligation.
2. Board Management Does Not Take Remedial Action When Veterans Law Judges Continue to Make These Types of Errors
One method of eliminating repetitive types of Board errors would be if Board management took remedial action when Veterans Law Judges repeatedly violate deeply embedded legal principles. This has not been done.
The problem is not that Board management fails to assess the performance of the Board’s Veterans Law Judges. Board management does conduct such assessments. The problem lies in Board management’s definition of poor performance. As the Chairman of the Board stated in his FY 2006-FY2008 Reports, Board management annually assesses the accuracy rate of Board decision-making – a rate which “quantifies those substantive deficiencies that would be expected to result in a reversal or a remand by the CAVC.” Over the last three fiscal years, the Chairman reports that the Board’s accuracy rate was 93 percent, 93.8 percent, and 94.8 percent, respectively.
There obviously is a major disconnect between the annual report card prepared by the Court of Appeals for Veterans Claims and the annual report card prepared by Board management. How can it be that year in and year out the Court consistently concludes that well over 50 percent of the Board decisions contain one or more specific legal errors that prejudiced the rights of the VA claimant to a proper decision, while at the same time Board management concludes that only 6-7 percent of the Board’s decisions are inaccurate? It appears that by using a skewed definition of what constitutes poor performance, Board management actually promotes, rather than discourages, these errors of law.
Recommendation 1: Adopt the Long-Standing Process Used and the Protections Afforded to Administrative Judges Who Adjudicate Disputes in Other Federal Agencies.
NVLSP believes that one of the major steps that Congress should take to reform the Board and significantly improve its performance is to change the methodology used to select the individuals who adjudicate appeals at the Board of Veterans Appeals. These individuals, called Veterans Law Judges (VLJs), are usually long-time VA employees who are promoted to this office from within the agency. By the time they become a VLJ, they often have adopted the conventional adjudicatory philosophy that has long held sway at the VA – an adjudicatory philosophy that underlies the failing grade assigned by the Court. Moreover, Veterans Law Judges do not enjoy true judicial independence.
In the Federal administrative judicial system outside the BVA, most judges are administrative law judge (ALJs). An ALJ, like a VLJ, presides at an administrative trial-type proceeding to resolve a dispute between a Federal government agency and someone affected by a decision of that agency. ALJs preside in multi-party adjudication as is the case with the Federal Energy Regulatory Commission or simplified and less formal procedures as is the case with the Social Security Administration.
The major difference between Federal ALJs and the VLJs that serve on the Board of Veterans’ Appeals is that ALJs are appointed under the Administrative Procedure Act of 1946 (APA). Their appointments are merit-based on scores achieved in a comprehensive testing procedure, including an 4-hour written examination and an oral examination before a panel that includes an OPM representative, American Bar Association representative, and a sitting Federal ALJ. Federal ALJs are the only merit-based judicial corps in the United States.
ALJs retain decisional independence. They are exempt from performance ratings, evaluation, and bonuses. Agency officials may not interfere with their decision making and administrative law judges may be discharged only for good cause based upon a complaint filed by the agency with the Merit Systems Protections Board established and determined after an APA hearing on the record before an MSPB ALJ. See Butz v. Economou, 438 U.S. 478, 514 (1978).
There are many attorneys who have never been employed by the VA who are familiar with veterans benefits law and who are eminently qualified to serve as an administrative judge at the Board of Veterans’ appeals. Moreover, while use of the ALJ process may not always result in the selection of an individual with a great deal of experience in veterans benefits law, it should not take a great deal of time for someone without such experience to become proficient. The experience of the many judges who have been appointed to the Court of Appeals for Veterans Claims without prior experience in veterans benefits law attests to this proposition. NVLSP believes the likelihood of improved long-term performance of a judge selected through the ALJ process greatly exceeds whatever loss in short-term productivity may result if someone who is not steeped in veterans benefits law happens to be selected.
Recommendation 2: The Criteria Used in, and the Results of the Evaluation System of VLJs Employed by Board Management Should Be Publicly Available and Reported to Congress.
This recommendation may not be necessary if Congress adopts the first recommendation. But if Congress does not embrace the ALJ system for the BVA, it should at least require Board management to make publicly available the details of the system it employs for evaluating and rewarding the performance of VLJs and the results of the evaluation as applied to individual VLJs. When the evaluation system employed by Board management results in the conclusion that 93-94 percent of all Board decisions are accurate, it is plain that the evaluation system suffers from serious defects. Oversight of this system requires that it be made publicly available and reported to Congress.
Contributor #2 to the Hamster Wheel: Best and Mahl
In Best and Mahl, the Court of Appeals for Veterans Claims held that when it concludes that an error in a Board of Veterans’ Appeals decision requires a remand, the Court generally will not address other alleged errors raised by the veteran. The CAVC agreed that it had the power to resolve the other allegations of error, but announced that as a matter of policy, the Court would “generally decide cases on the narrowest possible grounds.”
The following typical scenario illustrates how the piecemeal adjudication policy adopted by the CAVC in Best and Mahl contributes to the Hamster Wheel phenomenon:
The piecemeal adjudication policy adopted in Best and Mahl may benefit the Court in the short term. By resolving only one of the issues briefed by the parties, a judge can finish an appeal in less time than would be required if he or she had to resolve all of the other disputed issues, thereby allowing the judge to turn his or her attention at an earlier time to other appeals. But the policy is myopic. Both disabled veterans and the VA are seriously harmed by how Best and Mahl contribute to the Hamster Wheel. Moreover, the CAVC may not be saving time in the long run. Each time a veteran appeals a case that was previously remanded by the CAVC due to Best and Mahl, the Central Legal Staff and at least one judge of the Court will have to duplicate the time they expended on the case the first time around by taking the time to analyze the case for a second time. Congress should amend Chapter 72 of Title 38 to correct this obstacle to justice.
Contributor #3 to the Hamster Wheel:
the Court’s Reluctance to Reverse Erroneous BVA Findings of Fact
Over the years, NVLSP has reviewed many Board decisions in which the evidence on a critical point is in conflict. The Board is obligated to weigh the conflicting evidence and make a finding of fact that resolves all reasonable doubt in favor of the veteran. In some of these cases, the Board’s decision resolves the factual issue against the veteran even though the evidence favorable to the veteran appears to strongly outweigh the unfavorable evidence.
If such a Board decision is appealed to the CAVC, Congress has authorized the Court to decide if the Board’s weighing of the evidence was “clearly erroneous.” But the Court interprets the phrase “clearly erroneous” very narrowly. The Court will reverse the Board’s finding on the ground that it is “clearly erroneous” and order the VA to grant benefits in only the most extreme of circumstances. As the CAVC stated in one of its precedential decisions: “[t]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish. . . . To be clearly erroneous, then, the [decision being appealed] must be dead wrong . . . ." Booton v. Brown, 8 Vet.App. 368, 372 (1995) (quoting Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
The net result of the Court’s extreme deference to the findings of fact made by the Board is that even if it believes the Board’s weighing of evidence is wrong, it will not reverse the Board’s finding and order the grant of benefits; instead, it will typically vacate the Board decision and remand the case for a better explanation from the Board as to why it decided what it did – thereby placing the veteran on the Hamster Wheel once again. Congress should amend the Court’s scope of review of Board findings of fact in order to correct this problem.
C. Injustice and Inefficiency Due to the Lack of Class Action Authority
Another reason for the longstanding delays and inefficiency in the VA adjudication system derives from the fact that Federal courts do not currently have clear authority to certify a veteran’s lawsuit as a class action. When Congress enacted the Veterans’ Judicial Review Act (VJRA) in 1988, it inadvertently erected a significant roadblock to justice. Prior to the VJRA, U.S. district courts had authority to certify a lawsuit challenging a VA rule or policy as a class action on behalf of a large group of similarly situated veterans. See, e.g., Nehmer v. U.S. Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989); Giusti-Bravo v. U.S. Veterans Administration, 853 F. Supp. 34 (D.P.R. 1993). If the district court held that the challenged rule or policy was unlawful, it had the power to ensure that all similarly situated veterans benefited from the court’s decision.
But the ability of a veteran or veterans organization to file a class action ended with the VJRA. In that landmark legislation, Congress transferred jurisdiction over challenges to VA rules and policies from U.S. district courts (which operate under rules authorizing class actions) to the U.S. Court of Appeals for the Federal Circuit and the newly created U.S. Court of Appeals for Veterans Claims (CAVC). In making this transfer of jurisdiction, Congress failed to address clearly the authority of the CAVC and the Federal Circuit to certify a case as a class action. As a result of this oversight, the CAVC has ruled that it does not have authority to entertain a class action (see Lefkowitz v. Derwinski, 1 Vet.App. 439 (1991)), and the Federal Circuit has indicated the same. See Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 2002).
As we illustrate below, the benefit of class actions in litigation against the government is that they conserve the resources of the government and the courts and help ensure that the government treats all similarly situated individuals in the same way.
Class actions are typically used to resolve efficiently a legal issue that affects a large number of similarly situated individuals. There are literally hundreds of individual VA rules and policies that affect the entitlement to VA benefits for a large number of VA claimants. From time to time, a VA claimant will file an appeal at the CAVC or the Federal Circuit that challenges the legality of one of these rules or policies. For example, a few of the Vietnam veterans who served off the coast of Vietnam appealed their claims all the way to the CAVC to challenge the VA rule limiting the statutory presumption of Agent Orange exposure to only those who set foot on the land mass of Vietnam. Another veteran filed suit at the CAVC to challenge the 2007 VA policy requiring the Compensation & Pension Service to conduct a clandestine review (i.e., without notice to the claimant) of all RO decisions granting a large amount of benefits (but not RO decisions denying a large amount of benefits) and requiring the ROs to amend their decisions if a Compensation & Pension Service official (before whom the claimant had no right to appear) disagreed with the RO decision granting benefits.
Without the benefit of a class action, each veteran adversely affected by the challenged rule or policy must individually take steps like filing a timely notice of disagreement, VA Form 9, and notice of appeal to the CAVC in order to keep their claim alive until a Federal court issues a final decision on the legality of the VA rule or policy. Each of these actions requires the VA or the CAVC to expend substantial resources to process and readjudicate the claims. This piecemeal adjudication of claims unnecessarily consumes the resources of the government, the courts, the veterans, and their representatives.
With a class action, however, the court that has jurisdiction over the challenge to a VA rule or policy could certify the case as a class action and order a moratorium on all VA and judicial adjudication of the claims of similarly situated veterans. Then, after the court’s decision becomes final, the court would have authority to end the moratorium and ensure that all similarly situated veterans are granted the relief, if any, obtained by the veteran who filed the lawsuit. The end result is that thousands of VA and judicial work hours are saved.
In addition, without the benefit of a class action, many similarly situated VA claimants will never receive the benefits obtained by the veteran who appealed to the CAVC or the Federal Circuit, if the veteran is ultimately successful in convincing the court that the VA rule or policy is illegal. That is because by the time the court issues a final decision, many similarly situated VA claimants will have already given up. They will not have filed a timely notice of disagreement, VA Form 9, or notice of appeal to the CAVC. In other words, the VA denial of their claim would have become final before the court issued its final decision. And unless the courts are provided class action authority, no law requires the VA to reopen the finally decided cases of similarly situated veterans for the purpose of granting them the benefits that the successful litigant ultimately obtained as a result of the court’s final decision.
Congress should enact legislative to provide the CAVC and Federal Circuit with class action authority in order to conserve the limited resources of the VA and the courts, and to ensure that similarly situated veterans receive the VA benefits to which they are entitled.
That completes my testimony. I would be pleased to answer any questions the Members of the Subcommittee may have.
http://veterans.house.gov/hearings/Testimo...d=388&Name= Because the only BVA decisions that the Court assesses are those appealed to the Court by a VA claimant, the decisions the Court reviews are self-selected by VA claimants. They do not represent a true random sample of BVA decision-making. Thus, it does not necessarily follow that the Board's overall error rate is 77.7 percent. On the other hand, the Court's report cards undoubtedly indicate that the Board's overall error rate is quite high. In NVLSP's experience, many of the BVA decisions that are not appealed to the Court contain the same types of errors as those contained in the decisions that are appealed to the Court. Some veterans do not appeal these flawed decisions because after years of pursuing their claim, they simply give up.
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