STATEMENT OF JAMES P. TERRY,
CHAIRMAN, BOARD OF VETERANS' APPEALS
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES HOUSE OF REPRESENTATIVES
May 22, 2007
Good morning, Mr. Chairman. I am happy to discuss with you, with Ranking Member Lamborn, the members of the Subcommittee, and your staff, the challenges facing the United States Court of Appeals for Veterans Claims (Court or Veterans Court). In doing so, we will provide our views as to what we believe are the reasons for the increase in the number of appeals to the Court, whether we can expect that trend to continue, and what measures are being taken to assist the Veterans Court in handling this increased workload.
With me today is R. Randall Campbell, Assistant General Counsel, Professional Staff Group VII of the Office of the General Counsel (Group VII), also known as the Veterans Court Appellate Litigation Group. That Group is charged with representing the Secretary of Veterans Affairs before the Court.
While appeals from the final decisions of the Board provide the primary source of the Veterans Court's workload, its workload includes a variety of other matters, including petitions for a writ of mandamus, and applications for fees and expenses under the Equal Access to Justice Act. Group VII is responsible for handling the administrative and legal matters involved in all litigation before the Veterans Court. This is a complex operation, akin to a large law firm employing a staff of nearly 100 consisting of attorneys and a large complement of administrative professionals who run the docket room, computerized case-tracking system, and copy center, among other things. In order to comply with the Veterans Court's Rules of Practice and Procedure, Group VII prepares, serves and files copies of the record on appeal in cases before the Veterans Court, producing an average of more than one million photocopies per month. Group VII has experienced first hand the effects on its own resources of the increasing caseload before the Veterans Court.
It is clear that the Veterans Court's caseload has increased continually since it opened its doors for business in 1989. For example, ten years ago, in Fiscal Year ( FY) 1997 the Veterans Court received 2,229 new cases. By contrast, in FY 2005, the Veterans Court received 3,466 new cases, and it received 3,729 new cases in FY 2006. So far this fiscal year, the Veterans Court is averaging in excess of the numbers of new cases received last year. I fully expect the caseload to increase for a number of reasons.
First, we at the Board are doing our utmost to increase the number of final decisions we produce. As you know, the mission of the Board of Veterans' Appeals ( BVA or Board) is to conduct hearings and render high quality, timely and final decisions in appeals of claims for veterans benefits. The vast majority of appeals involve claims for disability compensation benefits, such as claims for service connection, an increased rating, or survivor's benefits, which were denied at the VA Regional Office level.
In order for the Board to reach a fair and just decision in an appeal, the record must contain all evidence necessary to decide the appeal and reflect that all necessary due process has been provided. If the record does not meet these requirements, and the benefits sought cannot be granted, a remand for further development is necessary. Since a remand is a preliminary order and not a final decision on the merits, it generally may not be appealed to the Veterans Court. About three quarters of all remands are eventually returned to the Board for further consideration.
It is those decisions in which the Board denies the appeal, in whole or in part, that the claimant may challenge by filing a Notice of Appeal with the Court.
Hence, the Veterans Court's potential workload is directly dependent on the number of final decisions on the merits issued by the Board in which a benefit sought remains denied or, if allowed, was not granted to the fullest extent that the claimant is seeking.
As I testified before the full Committee last year, two of the Board's most important initiatives are to: 1)contain and reduce the backlog of appeals by increasing decision productivity, while maintaining high quality; and 2) improve timeliness and service to veterans by eliminating avoidable remands in order to issue more final decisions.
I am happy to report that we have had much success in working toward both these goals. While this is good news for the veterans we serve, who benefit from improved service, it has had the ancillary effect of increasing the universe of cases that may be appealed to the Court.
To illustrate, in FY 2003, the Board issued 31,397 decisions, with a remand rate of 42.6 percent. In FY 2004, while the number of decisions issued increased to 38,371, the remand rate increased to 56.8 percent. In FY 2005, during which we began working concertedly together with the Veterans Benefits Administration to avoid remands to the extent possible, we issued 34,175 decisions of which 38.6 percent were remanded in whole or part. In FY 2006, we issued 39,076 decisions, with a remand rate of 32.8 percent. We expect to issue about 40,000 decisions by the end of this fiscal year, while maintaining as low a remand rate as possible.
The result is that, over the last few years, there has been a significant increase in the number of BVA decisions that may be appealed to the Court. For example, while the Board issued nearly 5,000 more decisions in FY 2006 than in FY 2005, the number of decisions in which all benefits sought were denied also increased from 9,300 in FY 2004 to 13,032 in FY 2005, and to 18,107 in FY 2006. While the number of cases in which a grant of benefits was awarded by the Board also increased during this time, from 6,560 in FY 2004 to 7,096 in FY 2005, and to 7,537 in FY 2006, some of these decisions involve a grant of less than all the benefits sought and therefore may be appealed to the Court on those issues.
This trend is likely to continue, especially since the Board's workload continues to grow. The Board received 39,956 cases in FY 2004, 41,816 cases in FY 2005, 41,802 in FY 2006, and expects to receive 43,000 cases in FY 2007.
Other factors that may affect the increase in appeals to the Veterans Court are not so readily quantifiable. There is a heightened awareness among veterans of their access to the judicial process. It appears that veterans and their families have become increasingly knowledgeable about their right to appeal to the Veterans Court and are increasingly willing to avail themselves of that right.
In addition, there have been changes in the jurisprudence that have influenced the caseload. The courts have determined that the Veterans Court possesses authority to consider petitions for extraordinary relief under the All Writs Act, which has led to a significant amount of work at the Veterans Court. Additionally, the Federal Circuit has played a significant role in increasing the number of appeals at the Veterans Court by applying the "equitable tolling doctrine" to untimely appeals. On perhaps a smaller scale, cases like Bates v. Nicholson, 398 F.3d 1355 (Fed. Cir. 2005) or Meakin v. West, 11 Vet.App. 183 (1998), have expanded the jurisdiction of the Board of Veterans' Appeals and, hence, created the potential for additional cases to be appealed to the Veterans Court.
Statutory changes, too, have played an important role. For example, the EAJA was amended in 1992, in order to authorize the Veterans Court to award fees and expenses to veterans' attorneys. Thereafter, the caseload at the Veterans Court jumped monumentally. Over 20 percent of the Veterans Court's docket in FY 2005 and FY 2006 was comprised of such fee applications, and that percentage seems to be similar this fiscal year. Another instance was the elimination of the date of filing of the "notice of disagreement" limitation of the Court's jurisdiction, which had been originally enacted in the Veterans' Judicial Review Act to help control the workload of the Veterans Court. The statutory amendment that adopted the "postmark rule" for calculating timeliness of appeals has also had an impact on the Veterans Court's docket.
It also should be noted that there have been occasional increases in the number of new cases over the years resulting from organized efforts to present particular legal issues to the courts. For example, over the last few years the docket of the Veterans Court and the docket of the Federal Circuit have been crowded with cases involving the question of dual ratings for so-called "bilateral" tinnitus. There were hundreds of such cases filed in the Veterans Court over the last three years until that issue was resolved by the Federal Circuit last year. Such temporary increases are difficult to predict and can be difficult to manage because they are unpredictable in both timing and effect and have immediate applicability to all appeals at all stages in the VA adjudication system.
Finally, all of us involved in the adjudication system agree that cases have grown more complex, with more numerous issues and much larger records to review and consider. Even a case with just a few simple issues takes more time to process, when, as is increasingly common, the record on appeal may constitute thousands and thousands of pages. When there are changes in law, such as a statutory enactment like the VCAA or issuance of a new precedent by a court, there might be dozens or even hundreds of cases that must be re-briefed, thereby delaying the ultimate decision in those cases. Because of the change in law, many of the cases will be remanded to VA by the Veterans Court and then be returned to the Court on appeal, increasing its workload. If a case is scheduled for oral argument, preparing for oral argument delays processing of other cases while the subject case receives priority treatment. The number of cases scheduled for oral argument has doubled over recent years, and that trend is predicted to continue. All of these factors can contribute to a backlog on the Veterans Court.
No doubt the Veterans Court is cognizant that its decisions, even in routine cases, are very important to those veterans who have been waiting for their "day in court." Moreover, precedents issued by the Veterans Court can have a profound and wide-ranging impact on the Department's adjudication system. These factors call for careful deliberation and consistency, which, in turn, affects the amount of time spent on each case.
With respect to potential remedies, it is notable that the Veterans Court is evaluating new means for alleviating or managing the press of business. For example, several years ago it adopted new procedures to reduce the amount of time expended by the parties' motions for continuances. It also reinforced its rules governing submission of pleadings, in order to deal with a rise in the filing of facially unsubstantiated writ petitions. We understand that the Veterans Court is currently considering a fundamental change to the procedures for preparing the record on appeal, with only those documents cited by the parties in their briefs to be required in cases where the veteran is represented. This will speed the submission of cases to the judges for decision. We also understand that the Veterans Court is also studying the feasibility of electronic filing.
The Veterans Court could better use certain tools already available to it. For example, the Veterans Court could adopt procedures that welcome, rather than deter, summary motions in appropriate cases. In a recent Judicial Conference, the Court carefully discussed this possibility. We are hopeful that the plan to revamp the preparation of the record on appeal, which is currently under study and active consideration by the Court, will facilitate the filing of summary motions. As noted above, the Court could be expansive in taking account of the rule of prejudicial error in reviewing the Board's determinations, avoiding remands where justice will permit.
The Veterans Court could also be more open to the idea of consolidating cases or granting motions to stay cases, when there is a commonality of issues. In the instance of the tinnitus rating cases last year, for example, the Veterans Court did not consolidate the majority of the cases on its docket, nor did it grant the Secretary's motions to stay proceedings pending resolution of certain lead cases. Because the cases were permitted to proceed individually, there was an unnecessary expenditure of resources in the individual tinnitus cases and an avoidable diversion of time and resources from other cases on the docket of the Veterans Court until the Federal Circuit reversed their decision.
These changes would affect cases that have already been filed. As noted earlier, however, the sheer number of potentially appealable decisions from the Board of Veterans' Appeals is staggering. The problem of backlogs will be a theme that continues into the future, unless steps are taken to meaningfully reduce the actual number of appeals or to employ an expeditious means to dispose of them. We should note that the Chief Judge has sought to address this situation by securing the recall of retired judges to help address backlogged cases.
Finally, I note that the Veterans Court has had their most productive year ever in 2006. They not only decided a total of 2,842 cases, but adjudicated 1,152 Equal Access to Justice Act applications and heard 22 oral arguments, while processing 382 appeals to the Federal Circuit.
This concludes my testimony. Mr. Campbell and I would be pleased to answer any questions you or your colleagues might have.
U.S. Department of Veterans Affairs - 810 Vermont Avenue, NW - Washington, DC 20420
Reviewed/Updated Date: November 10, 2009