[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]


                   EXAMINING THE VA APPEALS PROCESS:
                ENSURING HIGH QUALITY DECISION-MAKING FOR 
                           VETERANS' CLAIMS ON APPEAL

=======================================================================

                                HEARING

                               BEFORE THE

                        SUBCOMMITTEE ON DISABILITY 
                      ASSISTANCE AND MEMORIAL AFFAIRS

                                 OF THE

                     COMMITTEE ON VETERANS' AFFAIRS

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                      WEDNESDAY, NOVEMBER 29, 2023

                               __________

                           Serial No. 118-41

                               __________

       Printed for the use of the Committee on Veterans' Affairs
       
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]       


                    Available via http://govinfo.gov
                    
                               __________

                   U.S. GOVERNMENT PUBLISHING OFFICE                    
54-514                      WASHINGTON : 2024                    
          
-----------------------------------------------------------------------------------                     
                    
                     COMMITTEE ON VETERANS' AFFAIRS

                     MIKE BOST, Illinois, Chairman

AUMUA AMATA COLEMAN RADEWAGEN,       MARK TAKANO, California, Ranking 
    American Samoa, Vice-Chairwoman      Member
JACK BERGMAN, Michigan               JULIA BROWNLEY, California
NANCY MACE, South Carolina           MIKE LEVIN, California
MATTHEW M. ROSENDALE, SR., Montana   CHRIS PAPPAS, New Hampshire
MARIANNETTE MILLER-MEEKS, Iowa       FRANK J. MRVAN, Indiana
GREGORY F. MURPHY, North Carolina    SHEILA CHERFILUS-MCCORMICK, 
C. SCOTT FRANKLIN, Florida               Florida
DERRICK VAN ORDEN, Wisconsin         CHRISTOPHER R. DELUZIO, 
MORGAN LUTTRELL, Texas                   Pennsylvania
JUAN CISCOMANI, Arizona              MORGAN MCGARVEY, Kentucky
ELIJAH CRANE, Arizona                DELIA C. RAMIREZ, Illinois
KEITH SELF, Texas                    GREG LANDSMAN, Ohio
JENNIFER A. KIGGANS, Virginia        NIKKI BUDZINSKI, Illinois

                       Jon Clark, Staff Director
                  Matt Reel, Democratic Staff Director

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                    MORGAN LUTTRELL, Texas, Chairman

C. SCOTT FRANKLIN, Florida           CHRIS PAPPAS, New Hampshire, 
JUAN CISCOMANI, Arizona                  Ranking Member
ELIJAH CRANE, Arizona                CHRISTOPHER R. DELUZIO, 
KEITH SELF, Texas                        Pennsylvania
                                     MORGAN MCGARVEY, Kentucky
                                     DELIA C. RAMIREZ, Illinois

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Veterans' Affairs are also 
published in electronic form. The printed hearing record remains the 
official version. Because electronic submissions are used to prepare 
both printed and electronic versions of the hearing record, the process 
of converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.
                        
                        
                        C  O  N  T  E  N  T  S

                              ----------                              

                      WEDNESDAY, NOVEMBER 29, 2023

                                                                   Page

                           OPENING STATEMENTS

The Honorable Morgan Luttrell, Chairman..........................     1
The Honorable Chris Pappas, Ranking Member.......................     2

                               WITNESSES
                                Panel 1

Mr. Kenneth A. Arnold, Vice Chairman, Board of Veterans' Appeals, 
  U.S. Department of Veterans Affairs............................     3

        Accompanied by:

    Ms. Mary Ann (Merri) Flynn, Chief Counsel, CAVC Litigation 
        Group, Office of General Counsel, U.S. Department of 
        Veterans Affairs

    Mr. Timothy Sirhal, Executive Director, Office of 
        Administrative Review, Veterans Benefits Administration, 
        U.S. Department of Veterans Affairs

Ms. Elizabeth Curda, Director, Education, Workforce, and Income 
  Security Issues, U.S. Government Accountability Office.........     5

                                Panel 2

Mr. Shane Liermann, Deputy National Legislative Director, 
  Disabled American Veterans (DAV)...............................    21

Ms. Diane Boyd Rauber, Executive Director, National Organization 
  of Veterans' Advocates, Inc. (NOVA)............................    23

Mr. Michael S. Figlioli, Director, National Veterans Service, 
  Veterans of Foreign Wars of the United States (VFW)............    24

Mr. Zachary M. Stolz, Partner, Chisholm Chisholm & Kilpatrick LTD 
  (CCK)..........................................................    26

Mr. Douglas E. Massey, President, Local 17, American Federation 
  of Government Employees (AFGE).................................    27

                                APPENDIX
                    Prepared Statements Of Witnesses

Mr. Kenneth A. Arnold Prepared Statement.........................    41
Ms. Elizabeth Curda Prepared Statement...........................    45
Mr. Shane Liermann Prepared Statement............................    77
Ms. Diane Boyd Rauber Prepared Statement.........................    82
Mr. Michael S. Figlioli Prepared Statement.......................    87
Mr. Zachary M. Stolz Prepared Statement..........................    91
Mr. Douglas E. Massey Prepared Statement.........................    95

                       Statements For The Record

Bergmann & Moore, LLC............................................    99
U.S. Court of Appeals for Veterans Claims........................   104

 
                   EXAMINING THE VA APPEALS PROCESS:
  ENSURING HIGH QUALITY DECISION-MAKING FOR VETERANS' CLAIMS ON APPEAL

                              ----------                              


                      WEDNESDAY, NOVEMBER 29, 2023

             U.S. House of Representatives,
  Subcommittee on Disability Assistance & Memorial 
                                           Affairs,
                            Committee on Veterans' Affairs,
                                                   Washington, D.C.
    The subcommittee met, pursuant to notice, at 11 a.m., in 
room 360, Cannon House Office Building, Hon. Morgan Luttrell 
(chairman of the subcommittee) presiding.
    Present: Representatives Luttrell, Franklin, Ciscomani, 
Self, Pappas, Deluzio, McGarvey, and Ramirez.

         OPENING STATEMENT OF MORGAN LUTTRELL, CHAIRMAN

    Mr. Luttrell. The subcommittee will come to order. Good 
morning. Thank you all for being here today.
    Today we will be taking a close look at whether VA does 
enough to ensure that veterans receive high-quality decisions 
in their claims on appeal. Veterans often wait for years for a 
final answer on their claims and will owe them an answer that 
is fair and correct.
    The VA Board of Veterans' Appeals (BVA) is primarily 
responsible for ensuring that veterans receive accurate 
answers. When the Board decides that the Veterans Benefits 
Administration, VBA, makes mistakes when initially processing a 
claim, VBA is responsible for correcting those mistakes. We 
know that the Board and VBA employees are dedicated to 
providing veterans with high-quality care decisions.
    Board leadership's primary concern is issuing a high number 
of decisions on veterans' claims on appeal. Board leadership 
has failed to implement measures to ensure that these decisions 
are correct and fair for each and every veteran. Training out 
members is more important to the Board sometimes than ensuring 
veterans are receiving the right answers on their claims.
    We question the accuracy of the over 90 percent quality 
assurance rates that the Board has reported to Congress. How 
can the Board's quality rate be that high when the Veterans 
Court catches the same mistakes being made over and over again, 
and when the Veterans Court stated that in the Fiscal Year of 
2022, only 5 percent board denials on appeal were legally 
correct?
    We are concerned about whether the Board and VBA inform 
specific employees about their past mistakes so that they can 
learn from them. We will continue monitoring whether the VA is 
training employees enough so that they can provide every 
veteran with legal, accurate answers. It is important for us to 
ensure that our veterans receive the fair and just outcomes 
that they deserve.
    To provide insights into these quality issues, we will be 
hearing from VA and the U.S. Government Accountability Office 
(GAO). We will also hear from Disability American Veterans 
(DAV); the National Organization of Veterans' Advocates (NOVA); 
the law firm of Chisholm Chisholm & Kilpatrick; veterans of 
Foreign Wars (VFW); and the American Federation of Government 
Employees (AFGE).
    I would also like to recognize Ms. Carol Whitmore, the 
junior vice commander in chief of the Veterans of Foreign Wars 
of the U.S., who is with us today. Ma'am, thank you so much for 
joining us today.
    I want to thank everyone again for being here today, and I 
am looking forward to our conversation about what we can do to 
ensure the VA provides every veteran with a high-quality 
decision in their claims and appeals.
    With that, I yield to the ranking member for his opening 
statement.

       OPENING STATEMENT OF CHRIS PAPPAS, RANKING MEMBER

    Mr. Pappas. Thank you, Mr. Chairman, for holding this 
important hearing on the quality of the Board of Veterans' 
Appeals decision-making in veterans' claims appeals.
    As all of my colleagues do, I have got numerous 
constituents with claims pending at the Board of Veterans' 
Appeals. The current average time that it takes to have an 
appeal claim adjudicated by the Board ranges from less than a 
year to up to 2-1/2 years. I am sure that the panelists here 
today will all agree that this is totally unacceptable. No one 
should have to wait that long to find out if their appeal was 
granted.
    Congress tried to address this issue in 2017 with the 
Appeals Modernization Act (AMA), which redesigned the veterans 
benefit appeal system and created a new decision review 
process, allowing veterans to choose from one of three lanes to 
determine the path their appeal will follow. While the AMA has 
shown promise, it is not working as fast as we hoped it would. 
Now, with the implementation of PACT, there is growing concern 
as to whether the Board will have the capacity to provide 
timely decisions to veterans.
    Today, I am hoping to gain insight into the necessary steps 
for improvement of the process and how Congress can help or 
hurt those efforts, because our shared commitment to veterans 
demands a proactive approach to address these challenges and 
fortify the effectiveness of the AMA. We must get it right 
together.
    In addition to addressing the speed of appeals under the 
AMA, it is imperative we also focus on the Board's quality 
assurance and training programs. Ensuring the accuracy and 
fairness of appeal decisions is as crucial as expediting the 
process itself. Robust quality assurance measures must be in 
place to guarantee that veterans receive correct decisions.
    Moreover, investing in comprehensive training programs for 
Board employees is vital to enhance their expertise and ensure 
a thorough understanding of veterans' unique circumstances. 
Accordingly, I would also like to explore strategies for 
bolstering quality assurance mechanisms and advancing training 
initiatives, recognizing that the effectiveness of the AMA 
hinges not only on speed, but also on the precision and 
fairness of decisions affecting veterans.
    I appreciate the efforts VA has made in the past few years 
to streamline appeals decisions, but clearly more needs to be 
done. In looking ahead, I see a list of goals to improve the 
accuracy and timeliness of veterans' claims. I hope BVA will 
discuss in detail when you plan to achieve these goals and, 
more importantly, how you plan to achieve them.
    This is extremely important to veterans that I serve in New 
Hampshire and their families, who expect me to not only help 
them navigate through this red tape, but also to cut it down 
when necessary.
    Thank you, Mr. Chairman. I yield back.
    Mr. Luttrell. Thank you, Ranking Member Pappas.
    Our witnesses today: Mr. Kenneth Arnold, the vice chairman 
of the VA Board of Appeals. Mr. Arnold is joined by Ms. Mary 
Ann Flynn of the Office of General Counsel and Mr. Timothy 
Sirhal of VBA's Office of Administrative Review. Additionally, 
Ms. Elizabeth Curda will testify on behalf of the U.S. 
Government Accountability Office.
    I ask the witnesses of our first panel to please stand and 
raise your right hand.
    [Witnesses sworn.]
    Mr. Luttrell. Let the record reflect that the witnesses 
have answered in the affirmative.
    Thank you all for being here today. Mr. Arnold, you are now 
recognized for 5 minutes to deliver your opening statement.

                  STATEMENT OF KENNETH ARNOLD

    Mr. Arnold. Thank you, sir. Good afternoon. Chairman 
Luttrell, Ranking Member Pappas, and members of the 
subcommittee. Thank you for the opportunity to appear before 
you today to discuss this important topic. With me today are 
Timothy Sirhal and Mary Flynn.
    I am a VA employee, but my relationship with VA is deeper 
and more nuanced. As a veteran with 30 years of active-duty 
service, and as the eldest of seven children in a family that 
was completely reliant on my father's 100 percent disabled 
veteran status, I view my role in VA as a sacred duty. The VA 
medical care my dad received kept him alive until I was 15. 
That gift was the driving factor in my decision to enlist at 
the age of 17 and pursue a life of service to this great 
country.
    After retiring from the military and serving for 8 years in 
the career Senior Executive Service (SES), I was approved by 
the President nearly 5 years ago to serve in my current role at 
the VA. It is an incredible honor and a deeply humbling 
experience. Our sole objective is to swiftly and fully resolve 
appeals to the fullest extent of the law with fair and final 
decisions by a judge.
    Since 1933, the law has required Board judges to be 
Presidentially approved for good reason: because they must have 
the judgment, experience, and authority to act on behalf of the 
Secretary when applying the law to the facts of each individual 
case. This has enabled the Board to say yes and grant at least 
some relief in roughly a third of our annual decisions, even 
after VA has previously said no. I am not aware of any other 
Federal appeal system that grants relief as much as the Board 
does.
    VA has decreased wait times thanks to the passage of the 
Appeals Modernization Act. Last year, the Board decided over 
30,000 AMA appeals. Those faster decisions reflect 20 percent 
fewer remanded cases and 10 percent higher grant rates. VBA 
implemented over 10,000 full grants of benefits by the board 
under AMA last year, averaging less than 30 days to do it. On 
average, AMA appeals at the Board are fully resolved, meaning 
there are no remands, approximately 4 years faster than it 
takes to fully resolve legacy system appeals.
    However, it takes 6 years to resolve legacy cases and 
almost 2 years to resolve these AMA cases, far too long for 
both. Frankly, the legacy system is holding us back from 
achieving even greater success under the AMA.
    Last year, the Board issued 103,245 decisions; 70 percent 
of those were legacy system appeals; nearly 60 percent had to 
be remanded. VA still has nearly 60,000 pending legacy system 
appeals, over 20 percent of which have not been evaluated for 
the first time by a Board judge because other remanded appeals 
keep returning to the head of the line.
    Roughly 15 percent of the pending legacy appeals are being 
adjudicated for the fifth time or more. The root cause was 
identified by Congress in 2017. The legacy system allows for 
and incentivizes repeated revisions during the appeals process 
that necessitates successive remands. Some suggest that Court 
remands mean Board judges are making significant and repeated 
errors. That is not the whole truth. We make mistakes, but not 
the type of mistakes that would normally deny veterans extra 
benefits.
    The whole truth is that over 92 percent of the Board's 
100,000 decisions each year are not even appealed to the Court. 
When Court judges do rule on the merits, they overwhelmingly 
affirm Board decisions, an average of 500 affirmances each 
year, versus only one to two dozen reversals. Unfortunately, 78 
percent of the appeals filed at the Court each year get 
remanded without ever being seen by a Court judge.
    These remands operate like legal settlements between the 
attorneys and most often require a Board decision to be re-
adjudicated with more explanation for why something could not 
be granted.
    The Court's clerk annually approves 6,500 to 7,300 attorney 
fee requests each year, almost all for remanded cases. This 
generates 45 to 50 million in attorneys' fees each year, with 
the majority going to a small number of boutique law firms, but 
relatively few veterans receiving any increase in their monthly 
compensation from a new Board decision post remand.
    It is time for all stakeholders to come back together for a 
holistic review of the veterans' disability system. That is why 
VA has plans with VBA to host an AMA summit with all 
stakeholders in early 2024.
    This concludes my testimony. My colleagues and I stand 
ready to respond to any questions you have.

    [The Prepared Statement Of Kenneth Arnold Appears In The 
Appendix]

    Mr. Luttrell. Thank you, Mr. Arnold. Let the record reflect 
that the witness'--excuse me, the written statement of Mr. 
Arnold will be entered into the hearing record.
    Ms. Curda, you are now recognized for 5 minutes to deliver 
your opening statement.

                  STATEMENT OF ELIZABETH CURDA

    Ms. Curda. Good morning, Chairman Luttrell, Ranking Member 
Pappas, and members of the subcommittee. I am pleased to be 
here to discuss GAO's work regarding the quality assurance, or 
QA, process at the Board of Veterans' Appeals.
    As you know, if VA denies a veteran's claim for benefits or 
services, the veteran can appeal their case to the Board. If 
the veteran is dissatisfied with the Board's decision, they may 
appeal their case to the U.S. Court of Appeals for Veterans 
Claims (CAVC).
    The Board is filled with dedicated individuals who have 
worked hard to produce record numbers of decisions in recent 
years. The Board also faces large workloads and time pressures, 
and these and other factors require a robust QA process to 
ensure that decision quality does not suffer in favor of speed 
or production.
    Moreover, since 2003, VA's management of disability 
compensation workloads has remained on GAO's high-risk list, 
due in part to large appeals backlogs and lengthy wait times. 
The Board's QA process needs to be understood in this context 
and the risks that workloads pose to quality.
    Compounding the risk is that the Board is not dealing with 
an appeal once, but often multiple times, due to the practice 
of remanding appeals that need correction either from the Board 
to VBA or from the Court back to the Board. This rework is a 
significant part of the Board's workload. Today, I will 
discuss, first, how the Board assures and measures quality of 
its decisions; and second, the extent to which the Board has a 
process for continuously improving quality.
    In terms of how the Board assures and measures the quality 
of its decisions, the Board has a basic process to detect 
errors and provide feedback to its judges. An emphasis of the 
Board's QA process is checking a random sample of its draft 
decisions to detect errors. Based on this check, it calculates 
an accuracy rate that represents error-free decisions, meaning 
that the Board determines that its judges have followed 
procedure and applied the law correctly. In Fiscal Year 2022, 
in response to one of our recommendations, the Board 
established a goal of 92 percent accuracy, which it generally 
met last year.
    However, the Board does not have written policies and 
procedures for calculating this accuracy rate and managing the 
data supporting it. Without these policies and procedures, the 
Board cannot be sure that this publicly reported measure is 
accurate and verifiable.
    Similarly, the Board is not monitoring whether its judges 
are incorporating the feedback they receive from the QA 
process. Such monitoring could inform improvements to how this 
QA activity is designed and implemented.
    In terms of the extent to which the Board has a process to 
continuously improve quality, we found that more could be done. 
Specifically, certain types of errors, such as improper 
remands, remained among the most common from Fiscal Year 2020 
through Fiscal Year 2022. Also, data show that the Court 
remands a large majority of appealed Board decisions for full 
or partial rework, which often is because the Court found the 
Board's explanation of its findings to be inadequate.
    Overall, the Board lacks a process to better understand 
these issues, which could point to better interventions and 
solutions.
    First, Board officials told GAO it has no comprehensive 
written plan outlining how it will accomplish the mission of 
its QA process. Its efforts appear to be ad hoc.
    Second, Board officials have not fully analyzed the 
underlying causes of the most common decision errors or court 
remands.
    Third, the Board has not systematically or comprehensively 
developed evidence to better understand what effect, if any, 
its interventions have on quality, such as consistently 
collecting feedback about training.
    Finally, the Board knows little about the consistency of 
its judges' decisions. Studying consistency could help the 
Board understand whether there are common misunderstandings of 
policy, regulation, or law.
    The key practices for evidence-based decision-making I 
highlight in my statement offer the Board a roadmap for 
developing and implementing a process of continuous 
improvement. The Board's planned evaluation of its approach to 
quality assurance could help the Board develop such a process.
    Having observed VA over several years, many challenges 
facing the VA stem from its leaders not fully leveraging 
leading management practices. Another key to addressing these 
challenges is fully implementing our recommendations. We have 
made several recommendations today. By effectively implementing 
them, the Board would be better positioned to reduce the most 
common errors and associated rework, thus freeing up resources 
to decide more timely and accurate appeals.
    This concludes my prepared statement, and I am happy to 
address your questions.

    [The Prepared Statement Of Elizabeth Curda Appears In The 
Appendix]

    Mr. Luttrell. Thank you, ma'am. The written statement of 
Ms. Curda will be entered into the hearing record.
    We will now move to questioning. I recognize myself for 5 
minutes.
    Mr. Sirhal, good morning. Can you imagine being a veteran 
who has waited for years for an answer to your claim and then 
are told that your case has gotten sent back to the beginning 
because of a VBA employee did not fulfill their statutory duty 
to assist?
    I understand a VBA employee has a duty to assist in 
developing a veteran's claim before the claim ever reaches the 
Board of Appeal. In Fiscal Year 2022, the Board sent back 
roughly 6,000 cases because a VBA employee failed to properly 
collect all necessary evidence. We know that the national work 
queue (NWQ) does not return those cases to the claims processor 
who initially started the case.
    My question is, so how does VBA ensure that individual 
claims processors receive that feedback?
    Mr. Sirhal. Thank you for the question.
    Mr. Luttrell. Sir?
    Mr. Sirhal. Am I on the--okay.
    Mr. Luttrell. You are ready.
    Mr. Sirhal. I thank you for the question.
    Mr. Luttrell. Go after it.
    Mr. Sirhal. VBA takes remand seriously. Of course, we want 
the claim moving forward and have a decision issued, not having 
the claim move backward in the process.
    Mr. Luttrell. Is your microphone on, sir? I am sorry.
    Mr. Sirhal. Can you hear me?
    Mr. Luttrell. There you go. Yes, sir.
    Mr. Sirhal. Okay. My apologies, sir. VBA uses remand data 
on a--we have a programmatic approach, meaning we use it to 
inform our training programs. We have seen, from a trend 
perspective, is remands around exam issues. We incorporate exam 
training in our initial training of new processors in our 
yearly curriculum.
    Mr. Luttrell. Yes, sir, I understand that. The issue is, 
and I am talking with multiple institutes around the country, 
is that once a case moves forward, i.e., to the Board and back 
down, it does not go back to the initial processor. That 
individual is not informed that if they made a mistake, that 
they made a mistake, so they do not know what to correct. Then 
the individual that receives the case has to basically start 
over and the one that suffers is the veteran.
    Mr. Sirhal. Yes, sir. What we found over the years is 
this--the remand cases from the Board are a nuanced specialized 
workload. We have consolidated processing at three decision 
review operations centers with the goal of being more efficient 
in processing and ensuring that the veteran who is impacted 
gets the remand resolved as quickly as possible based on the 
volume of cases that VBA decides each year. Last year we 
decided 1.9 million. If we were to return the case to 
individual processors, a single processor may receive one case 
or less or a year.
    Mr. Luttrell. The process itself, I understand the 
infrastructure and it is one of those--this is one of the--if I 
could put my find on one thing that would help improve and 
streamline the process, it would be to not only reorganize, 
restructure, or realign NWQ. Because the three institutions 
that you are talking about are in place, what are the numbers 
of success once those cases come back? Do you have that?
    Mr. Sirhal. In the legacy space, it is about 17 percent get 
granted when they come back, but in AMA, it is more than double 
that last year. Between 35 and 40 percent get granted when they 
come back to VBA.
    Mr. Luttrell. Fairly low.
    Mr. Sirhal. Higher than legacy.
    Mr. Luttrell. Given the numbers.
    Mr. Sirhal. Higher than legacy, which is a good thing.
    Mr. Luttrell. Ms. Curda, how many times, your statement 
that you just read, how many times have you read those same 
bullet points off in the past few years? I would assume that 
this just has not been created in 2023 or 22.
    Ms. Curda. Well, back in 2021, I testified before the 
subcommittee about the Board's QA process having, you know, 
implemented AMA. The topic at the time was that, you know, 
under AMA, the Board had not established a QA process that 
addressed the changes to the system.
    Mr. Luttrell. The same talking points basically?
    Ms. Curda. Yes.
    Mr. Luttrell. I will give you a little rope here, but it is 
basically the same talking points.
    Ms. Curda. Yes.
    Mr. Luttrell. My question, Mr. Arnold, is, with my 34 
seconds, who do these points need to fall in front of? Who is 
responsible for course correcting these issues? Because if she 
has been doing this since 2021, we are listening and we are 
waiting for the VA to respond. Since it is 2023, no one is 
doing that.
    Mr. Arnold. Sir, all I can say is, as the essentially chief 
operating officer for the Board, I accept accountability for 
anything that we failed on here. I will--as Ms. Curda was 
saying, the focus was slightly different in 2021. We had not 
even established a quality assurance program under the new AMA 
system we have today.
    Mr. Luttrell. All right. Mr. Arnold, my time is up, and I 
do not want to hold the rest of the members up, but--and I am 
going to have to wire brush you on this one, you have to fix 
this problem.
    Mr. Arnold. Could not agree more.
    Mr. Luttrell. I could say this all day long from this 
chair, and you can receive it and walk out of here. Again, you 
are the one.
    Mr. Arnold. Yes, sir.
    Mr. Luttrell. You have to fix this problem. No more the 
same reports year after year after year, because as a veteran, 
you understand it is the veterans that are suffering.
    Mr. Arnold. I understand, sir.
    Mr. Luttrell. All right. Thank you.
    I now recognize Ranking Member Pappas for 5 minutes.
    Mr. Pappas. Thank you, Mr. Chairman. I know VA has been 
highlighting recently the record number of claims that have 
been processed both through VBA and the Board, but, you know, 
volume is one metric, and with such a volume of claims, we also 
know that we are seeing a record number of errors as well in 
absolute terms. With the PACT Act, there are some concerns 
about claims that are being granted under the new law still 
being denied because VBA is not following the guidance. 
Standard Operating Procedures (SOPs) related to toxic exposure 
risk activity, it is leading to an increase in higher level 
reviews, which in turn leads to more appeals at the Board.
    Mr. Arnold, could I ask you this question? Has the Board 
seen a spike in these cases? In general, how have PACT Act 
claims, which should be relatively straightforward, affected 
the Board's caseload?
    Mr. Arnold. Sir, we have seen some, but, honestly, we have 
not seen a bow wave of new PACT Act claims. I think in part 
because of the high grant rate at VBA.
    I think another thing that is misunderstood is toxic 
exposure claims. The law has not changed. What PACT Act gave us 
was more conditions to presume that somebody is eligible. If 
time, space, and condition are present, we can grant on 
presumptive basis. It offered more presumptives. The basic 
evaluation of the case is the same under the Agent Orange Act 
and all of that, and that is the exposure of the veteran that 
led to the injury or condition.
    I can say we have not seen a bow wave yet. It does not mean 
it is not coming, but we are prepared for it.
    Mr. Pappas. Okay. Mr. Sirhal, maybe I can turn to you. I am 
just curious, you were alluding to this a little bit before, 
but as we think about communication between VBA and BVA around 
error trends and what you are seeing, what kind of 
communication happens there? If you could just give me a better 
sense of how that information is relayed so that folks at BVA 
are understanding what these trends are.
    Mr. Sirhal. Thank you for the question, sir. I will break 
it down into two primary communication loops, one I will call 
operational. The Office of Administrative Review, where I work, 
has a feedback loop with the Board of Veterans' Appeals' Chief 
Counsel's Office. When a remand comes back, if the Decision 
Review Operations Center employee has a question or needs 
clarification or something just does not make sense to them, 
they will submit that to our office through Central Office, and 
we coordinate with Mr. Arnold's staff to get it clarified with 
the issuing judge. That is more of an operational case-by-case 
initiative.
    Then the other initiative is more strategic, a remand tiger 
team that is been established. Me and my staff meet monthly 
with Mr. Arnold's staff to talk about more trends and 
strategies we can jointly implement to not only be more 
efficient in resolving remands, but look for ways to better 
understand the data, to adjust our behavior, to try to reduce 
remands in the future. That is focused more on the AMA space 
legacy as kind of its own issue, but we want to make sure we do 
not repeat the legacy remand rates in AMA and now is a critical 
time.
    Mr. Pappas. Yes, I appreciate that. On quality assurance, I 
am concerned about these repeated remands, especially those 
related to reasons and bases, essentially BVA failing to 
properly explain itself. This speaks to a lack, I think, of 
internal quality control before a decision goes out the door 
and prioritization of quantity over quality.
    If I could turn back to you, Mr. Arnold. Can you explain 
for us what sort of review happens before a decision is being 
issued? Why are veterans' law judges signing off on so many 
flawed decisions?
    Mr. Arnold. Thank you for that question, sir. First and 
foremost, the Board tags a decision--or tags a case for quality 
review before we know the result. It is randomized so that we 
are reviewing cases that are granted, cases that are remanded, 
and cases that are proposed for denial. Oftentimes it is a 
very--it is a mixed bag in each case. It is a different review 
standard that we are doing. The class of cases going up to the 
Court is a very select class of cases where we just could not 
get to yes. That is one distinct difference between how we are 
evaluating cases at our level versus what goes to the Court.
    It is interesting, though, that the errors we call in 
ourselves, which is mostly procedural, is somewhere in the 5 to 
6 percent. That is actually come up. It was closer to 8 percent 
a few years ago. This is the best year we have had from a 
quality perspective this past year, both under Legacy and under 
AMA. The appeal rate to the Court is about 8 percent. They do 
track in terms of percentage there.
    The reasons and bases, I do not want to speak for my 
colleague from General Counsel who agrees to these remands 
between counsel, her GS-13/14 counsel with the private bar 
reps, usually. I know in our private conversations, she talks 
about just how fact-specific they are based on the judge's 
explanation for why they have to deny. When it comes back, for 
reasons and bases, it is really hard to have very clear trends 
on those because it is so fact-specific to the cases. I hope 
that makes sense.
    Mr. Pappas. It does, and I appreciate the explanation. I am 
over on my time, but I just want to underscore, I think, what 
Ms. Curda was saying before about not leveraging best 
management practices, not fully implementing GAO 
recommendations, these are critical steps here. We stand ready 
to support you and thank you very much for your service. I 
yield back.
    Mr. Arnold. Thank you, sir.
    Mr. Luttrell. Thank you, Mr. Pappas.
    Mr. Franklin, you are recognized for 5 minutes, sir.
    Mr. Franklin. Thank you, Mr. Chairman, thank you, Ranking 
Member, for holding this hearing. The oversight that we do here 
is very critical to what we end up delivering for our veterans. 
As a veteran, I appreciate all the work that you all do to take 
care of them, but this is an important part of what we do.
    I want to pick up a little bit more on what the chairman 
was getting into with the lack of quality assurance 
initiatives. It is a recurring theme. Ms. Curda, actually, I 
had a hard time figuring out what was current testimony versus 
what had been done before, because it really seems like a lot 
of the same drumbeat over and over, and, to me, that is just 
unacceptable.
    When I look back, I think it is important to note some of 
these. Looking at the GAO testimony that we had here regarding 
QA processes, specifically, Board officials told GAO it has no 
comprehensive written plan outlining how it will accomplish the 
mission and goals of its QA process. Board officials told GAO 
it had not fully analyzed trends or underlying causes of the 
most common Board-identified errors or CAVC reprimands. The 
Board has not systematically or comprehensively built or used 
evidence--evidence not circumstantial, but evidence--to better 
understand and improve its interventions, such as collecting 
feedback about training, which comes up in some of the other 
testimony. The Board does not assess Volunteer Lawyers for 
Justice (VLJ) decisions for consistency, such as whether common 
misunderstandings of VA policy or law exist in decisions.
    Ms. Curda, do you still stand by that testimony, that those 
are shortcomings, deficiencies, you see in the QA process?
    Ms. Curda. Yes.
    Mr. Franklin. Okay. I am a firm believer in that what gets 
measured, gets done. It is important to choose what you are 
going to measure because any system can be gamed if you are not 
careful about your metrics. It sounds like even after 
identifying those back in July 2023, we are still not there. We 
do not even have the wrong metrics to try to take stock of.
    Mr. Arnold, I would understand from--you know, I appreciate 
you accept responsibility. That is noble of you, but at the end 
of the day, that is not good enough. You are the person in 
charge and these quality assurance processes are not in place. 
I think in reading through all of you all's testimony and then 
what we are going to get from the next panel, that is the root 
of a lot of problems. You cannot fix problems that you cannot 
measure and identify that you have and then figure out how you 
are going to get out from under them. I want to dive in a 
little bit on the decision.
    You know, after the testimony, 2-1/2 years ago almost, 
Congress appropriated another $228 million to hire more people 
because people were--you know, lack of appropriate manning was 
part of the issue. We have thrown money at that. We still do 
not have a QA behind it.
    I want to talk a little bit in the couple of minutes we 
have about the decision to reduce the training requirements, 
the experience requirements for the veteran law judges. Whose 
decision was that?
    Mr. Arnold. Sir, one of the things I want to clarify there 
is we did not reduce the requirements to become a veterans law 
judge. The previous chairman of the Board, who retired this 
past year, was really thoughtful in how we hire veterans law 
judges. Veterans law judges have the same criteria as----
    Mr. Franklin. Yes, okay.
    Mr. Arnold. I am sorry, sir.
    Mr. Franklin. Well, but let us--so that is not a 
requirement. Was it an unwritten rule before, because this 7 
years' of experience comes up in testimony from almost everyone 
else we are going to hear from later. Was it an unwritten rule 
before?
    Mr. Arnold. Sir, it----
    Mr. Franklin. That is a pretty specific thing for----
    Mr. Arnold. Yes, sir, it was an unwritten rule in a couple 
of recruitments. Yes, sir, over time that--and it actually 
created some challenges in the prior chairman's mind in terms 
of the Board having insular thinking. We were not as diverse in 
experience at the Board as we needed to be.
    Mr. Franklin. You think is the Board making--are you 
getting better decisions from the judges today than you were 
before that change was made?
    Mr. Arnold. I believe so, sir. I believe the uptick in our 
quality assurance rates this year have actually demonstrated 
that.
    Mr. Franklin. Apparently you cannot prove the 92 percent. I 
mean, you claim 92 percent, but there are no metrics that you 
can actually stand and show----
    Mr. Arnold. Yes, sir.
    Mr. Franklin [continuing]. according to what GAO said.
    Mr. Arnold. Yes, sir. We gave--I cannot--I do not know how 
many questions and datasets we provided to GAO.
    Mr. Franklin. Well, but you also say that, you know, most 
of the times when these are remanded, there is not any change. 
Well, in fact, 69 percent of the time, there are things that 
change after those. I would challenge a bit of that.
    Mr. Arnold. I saw that written testimony, and one of the 
challenges with that analysis is there was some 2020 cases and 
they said if anything changed 3 years down the road, that is an 
entirely different case than the Board evaluated.
    Mr. Franklin. All right. We are about out of time. I really 
would hope that you would stay and listen to the rest of the 
testimony from the others. Where there are discrepancies, I 
would hope that as the person in charge, you would pursue 
those, because, honestly, if we are here 2-1/2 years from now, 
it should be radically different, or you should not be the one 
sitting there testifying. Because to me, it is unacceptable 
that this has not changed in the 2-1/2 years since you did this 
last time.
    Thank you, Mr. Chairman. I yield back.
    Mr. Luttrell. Thank you, Mr. Franklin.
    Mr. Deluzio, you are recognized for 5 minutes, sir.
    Mr. Deluzio. Mr. Chairman, thank you. Good morning, 
everyone. I want to follow up on a piece of questioning, both 
Mr. Franklin and Mr. Pappas, about the high remand rate.
    Mr. Franklin mentioned some of the commentary in the GAO 
report about there not being fulsome analysis of underlying 
causes, though, Mr. Arnold, you were talking with Mr. Pappas 
and Mr. Franklin a bit about, I think, what some of those 
causes are. I will give you a chance to clarify. Is there now 
or are you undertaking a fulsome analysis, a study of what 
those underlying causes might be or are?
    Mr. Arnold. Yes, sir, we are. I am going to tell you, even 
if that includes pulling individual cases. In fact, my 
colleague, Ms. Flynn, was talking to me about all the remands 
she pulled, looking for sort of consistency when we were 
talking the other day.
    I will just give one example involving a case that I think 
points to the issue. We take hearings and decisions really 
seriously. A judge sitting with a representative and I will 
pull 2020 case from the same analysis that was afforded to you, 
we had a representative and veteran sitting before a judge 
saying, I am at 50 percent for this condition. I would like you 
to find me eligible for TDIU, total disability for individual 
unemployability, for this condition.
    During the hearing--I hope everybody can come and watch a 
hearing at some point. The judge is--it is non-adversarial. The 
judge is trying to get to yes. The judge is like, that dog's 
not going to hunt. Did not use those words. I cannot get there 
based on the evidence in the medical records and what you are 
saying. However, what if the combined total of the things that 
you are currently rated for, I could get to TDIU for you? Does 
that satisfy your appeal?
    Three times yes for the veteran, yes for the 
representative. That case was still appealed by private lawyers 
twice at the Court and remanded twice for further explanations. 
The veteran is still 100 percent TDIU, and nothing has changed.
    Mr. Deluzio. In the course of doing this analysis or study, 
will you be generating a report? Well, what will that product 
look like?
    Mr. Arnold. Sir, we will probably do something where we 
will fold it into one of our required annual reports to 
Congress or, if it is more AMA-specific, with those 180-day 
reports we provide to Congress every 6 months. I would assume 
we would fold it into something like that.
    Mr. Deluzio. Okay. Ms. Curda, I will ask you, should there 
be specific things we are pushing the Board to do in terms of 
what that report would look at, what would be adequate to 
answer some of the questions you have or the shortcomings you 
found?
    Ms. Curda. Sure, yes. I think it would be appropriate to 
ask for a specific analysis of the root causes of remands from 
the Court back to the Board. I think you should also be looking 
at the remands that are going from the Board to VBA, and one of 
the largest categories of errors that they find in their case 
review are improper remands. An analysis of the causes of those 
improper remands would be very informative as well.
    Mr. Deluzio. Mr. Arnold, I see you taking notes. Any 
objection to either of those or any of those comments from Ms. 
Curda in terms of what you should be looking into?
    Mr. Arnold. Not at all, sir. In fact, consistent with that, 
this is in my written testimony, the feedback system that we 
established is twofold: to ensure that VBA is appropriately 
addressing the remands issued by the judges and confirming that 
the Board's remand return reasons under the AMA relate only to 
duty to assist errors that occurred prior to the initial claim.
    One of the challenges, the biggest error we call in 
ourselves for cases we pull is what we see as unnecessary 
remands. Really, it is a legacy mentality that we see where 
remands were much more prolific under the legacy system, still 
are. It is one of the challenges we face.
    Under AMA, Congress specifically limited what we could 
remand for, and we see stuff still being shoehorned in that 
way. It is not bad intent. It is people thinking they are 
veteran-centric, because I could almost hit a recording every 
time, we are in a hearing and the hearing ends with, Judge, if 
you cannot grant this, at least remand it. That is not the 
right answer, especially under AMA anymore. That is in our 
backyard. That is something we have to address. Thank you, sir.
    Mr. Deluzio. Yes, sir. A little bit of time left, sir. I 
want to ask a different question about teleworking. Have you 
seen negative or positive or neutral impact on productivity, 
recruitment, VBA, and/or Board, and has there been any change 
in administration policy in the last few months or so affecting 
that?
    Mr. Sirhal. Thank you for that question. As far as our 
field employees, the claims processors, and I will speak about 
the Office of Administrative Review who handles the remands and 
the higher-level view process, our retention rate is between 2-
1/2 and 4 percent attrition rate, I am sorry, so people are 
staying.
    We have also staffed up the last 2 years, so we were 
bringing people on. In 2022, we had a little bit over 1,100 
employees, up to about 1,450 authorized last year, and we 
achieved 85 percent fill rate; adding 300 more this year. We 
are retaining people.
    Mr. Deluzio. Okay.
    Mr. Sirhal. We are producing----
    Mr. Deluzio. More to say that. I see my time is out. Mr. 
Chairman, I will yield back. Thank you.
    Mr. Luttrell. Thank you, Mr. Deluzio.
    Mr. Self, you are recognized for 5 minutes, sir.
    Mr. Self. Thank you, Mr. Chairman.
    Ms. Curda, how many GAO recommendations in this process 
have not been installed?
    Ms. Curda. Well, the report that we are issuing today has 
four recommendations, and, you know, we would expect to see 
some progress on those in the next, you know, year or so. On 
this particular topic, those are the open recommendations.
    Mr. Self. No past or open, so only the four?
    Ms. Curda. Well, we have past open recommendations, but not 
on the quality assurance process at the Board.
    Mr. Self. Okay. All right. Very good. In your testimony, 
you hired an additional 50 new veterans law judges. How many 
total do you have? What percentage is that?
    Mr. Arnold. Sir, we have 134 line veterans law judges. We 
also have senior executive Board members, usually deputy vice 
chairman or myself, who sit above them, who are also holding a 
veterans law judge status.
    Mr. Self. Okay.
    Mr. Arnold. In the last 2 years, the plus-up has been 33 
percent, I believe. Just during the last year, that portion of 
that, I think, was a little over 12 percent.
    Mr. Self. Okay. What did you spend the 228 million that Mr. 
Franklin referenced? How did you spend that in this process?
    Mr. Arnold. Most of it was--most of our budget is 
personnel, sir. Almost all of our budget spend has been in 
hiring personnel. This last year alone, we plussed up decision-
writing attorneys by 16 percent.
    Mr. Self. I saw that.
    Mr. Arnold. We have another ad out right now. Like I said, 
we plussed up the judges 33 percent. We plussed up other staff, 
particularly in the hearing's realm, quite a bit as well. I do 
not have the exact percentage on that, sir.
    Mr. Self. Yes, the reason I ask all of this is because I 
also filed a bill to add two judges to the senior Court and 
simply because of the cases that they cannot hear, which this 
is the process that we have got to fix.
    How much of this is transparency? You said you used it on 
personnel, but how about transparency for the veteran, because 
everything that I have heard in testimony here has been 
internal processes, and yet we have a veteran at the end of the 
day. What has been spent on transparency, Mr. Arnold?
    Mr. Arnold. Sir, I am really glad you asked that. Around 
transparency, one, I will point, a lot of people know it is 
there. In fact, our web traffic has really picked up. A year 
ago, the number one question for me as a veteran is, why does 
my appeal take so long? We put explanations out on our website 
to include data that we update monthly, quarterly, and 
annually, so they know exactly what is going on, what the 
challenges are, how things are getting better. In fact, it is 
just been recently updated with a lot of the statistics that I 
provided today.
    In terms of spending, we have got several things that are 
going on. Sir, we have increased our dollars, and, 
unfortunately, one acquisition vehicle we have has been hung 
up, which has been specifically related to quality assurance. 
The Board process around quality assurance for years has been 
one or two permanent personnel who sit there, and then there is 
detailed counsel who go in there on 1-to 2-year details that 
are supporting that. We are looking really hard at how much of 
that should be permanent. Now there is a judge in charge of 
that office and there is a judge in charge of the Chief 
Counsel's Office that sits on top of that.
    Mr. Self. Okay, thank you for that.
    Mr. Arnold. Yes, sir.
    Mr. Self. Ms. Curda, would you comment on that testimony? 
How does that fix this problem that you just heard from Mr. 
Arnold?
    Ms. Curda. Well, just regarding transparency, the Board 
does have its metrics on its website, so you can see on average 
how much time it takes. I can tell you that this morning I had 
six emails in my inbox from veterans who had read my statement, 
you know, overnight, and they all were talking about how they 
just did not know where their appeal was. They could not find 
out that individual level of information, and staff of the 
Board, you know, could not really give them answers. I think 
there is an issue with individual veterans being able to see 
where things are with their claims.
    Mr. Self. Mr. Arnold, I will tell you I met with Veterans 
Service Organizations (VSOs), this is Wednesday, Monday----
    Mr. Arnold. Yes, sir.
    Mr. Self [continuing]. before we came back, and they showed 
me on your website their claims. They pulled up an actual claim 
and it showed where they had added documents to it. The 
documents were, one, PDFs. The documents, one, were not 
hyperlinked, and two, when they copied the address and pasted 
it somewhere, they could not see the updated documents.
    I would ask you to look into that and get back to me, 
because I have veterans that are very frustrated with not being 
able to tell not only when their cases are going to be heard, 
but they do not know what has been added to their records 
because they cannot read it.
    Mr. Arnold. I would like to follow up and know the 
specifics on that so I could follow up. Thank you.
    Mr. Self. Absolutely. Thank you.
    Mr. Chairman, I yield back.
    Mr. Luttrell. Thank you, Mr. Self.
    Mrs. Ramirez, you are now recognized for 5 minutes.
    Ms. Ramirez. Thank you, Chairman. We are discussing quality 
and in the appeals process. Obviously, I think we can all agree 
that we have to make some significant improvements. I want to 
discuss one of the ways we continue to improve the appeals 
process for our veterans, specifically through the training.
    Mr. Arnold, can you walk me through the training that Board 
attorneys receive to help promulgate the appeals? Specifically, 
can you elaborate on how the board trains differently for older 
legacy claims, newer claims handled under the Appeals 
Modernization Act, as well as the new claims authorized by the 
PACT Act?
    Mr. Arnold. Yes, ma'am. I regret that I do not have the 
curriculum in front of me, but I can give you the basic outline 
of it.
    When a new attorney is hired at the Board, they go through 
a 6-month onboarding process that is all training. We have 
changed that up in recent years to make it more heavily 
weighted toward mentored writing with these differences that 
you are talking about. Before it was heavily just the classroom 
PowerPoint, and now there is more learn by doing. It is front-
loaded with about two--I think it is about 2 months of heavy 
classroom and mentored writing. Then the remaining 4-month 
period is you have assigned mentor writers--I mean, mentors who 
are reviewing draft decisions that are going to different 
judges where you get feedback. That is preparing them for after 
their 6-month initial onboarding process, when they are full up 
with the judge's team writing for that judge, that they are 
just not hitting--they are hitting the ground running rather 
than just starting to write at that point in a robust way.
    I do not know if that answers it fully, but it is split 
between understanding the distinction between legacy cases and 
AMA cases. Procedurally, they are just handled differently.
    Ms. Ramirez. Okay.
    Mr. Arnold. Yes, yes.
    Ms. Ramirez. Yes, that was specifically what I was 
interested in.
    Mr. Arnold. There is also--I mean, we have, I think, 2 
hours of training in that around PACT Act specifically. 
Somebody asked about that.
    Ms. Ramirez. Okay, yes.
    Mr. Arnold. There is a lot of topical things that are in 
there.
    Ms. Ramirez. Got it. Just a follow up on that. Is the 
training that you are offering with that 6-month process, is 
that only for new attorneys or are senior attorneys also given 
updated training?
    Mr. Arnold. Thank you for that, ma'am. Yes, senior 
attorneys are given more updated training. I know in a letter 
to the committee, to the chairman, and the ranking member, the 
chairman just responded to, I think, specific training around 
PACT Act as an example.
    But training offer--we stood up a professional development 
division under the Office of Chief Counsel, which also oversees 
the quality assurance process, because in the past, the 
training was kind of bifurcated between those two because they 
were in separate parts of the organization. We consolidated 
them under one umbrella. That training focuses on, topically, 
so many things. They are offering seminars every week. There 
are certain portions that are mandatory. There is stuff that we 
say, you got to give up an hour or two to do this.
    Ms. Ramirez. Send me the info. I would like to see just 
some of that updated training.
    Mr. Arnold. Yes. Yes, ma'am.
    Ms. Ramirez. I know that we are up in time. I just want to 
ask you one specific follow-up to that, and then I want to move 
on to something else.
    I am interested in how the Board leadership incorporates 
some of the observations and feedback that they are getting 
from the frontline employees on the training. Is there a 
process in incorporating that feedback into the new training or 
the ongoing training?
    Mr. Arnold. There is, ma'am. They are all surveyed by this 
professional development training staff, the attorneys who are 
running that. I think at every single block of instruction, I 
think they may have a survey process that gives them that 
feedback.
    Ms. Ramirez. Okay. Thank you. Thank you, Mr. Arnold.
    I want to pivot to the findings from the GAO with the time 
I have left. Ms. Curda, how does the absence of--well, in your 
testimony, specifically, you mentioned that the Board lacks a 
comprehensive written plan outlining how it is going to 
accomplish its mission and its goals of quality assurance. Ms. 
Curda, how does the absence of such a plan on the Board's 
ability to set priorities, address common errors, and improve 
its QA efforts?
    Let me ask you a follow up, just so you can answer both, 
and then we will close there. What are some key elements that 
you think should be included in the comprehensive plan for a QA 
process based on your understanding of best practices?
    Ms. Curda. Sure, I can cover those both. I mean, the 
absence of a plan means that they have a mission, which is a 
valid mission, but they do not have a specific aspiration or 
goal for what improvements in the quality process they want to 
accomplish. It is hard to do that when you do not have any 
data, specific data, on what you need to tackle and what you 
need to improve.
    I think a good plan would have specific goals for 
improvement, metrics for what they would expect to see in terms 
of changes to the goals, and specific actions they plan to take 
to achieve those goals, and milestones for when those actions 
will take place, and who is responsible. Those are all good 
elements of a plan.
    Oftentimes these are things that we do not see at the VA. I 
mean, not just the Board, but across the board at the VA, we 
see a lack of good planning.
    Ms. Ramirez. Thank you.
    Chairman, I yield back. Thank you.
    Mr. Luttrell. Thank you, Ms. Ramirez.
    Mr. Ciscomani, you are now recognized for 5 minutes, sir.
    Mr. Ciscomani. Thank you, Mr. Chair. I want to--I have a 
few questions here and piggyback off some of my colleagues' 
comments. I cannot find my glasses. Oh, here we go.
    There has been progress in the number of claims and appeals 
being processed, but recent reports have also indicated that 
this has come with a drop in attention and detail and a high 
rate of claims wrongly thrown out or continually sent back and 
forth between VBA and the Board. Today, I hope that we can 
learn on how we can best streamline VA processes and ensure our 
veterans and their families are taken care of.
    First question, Ms. Flynn. In roughly 80 percent of appeals 
in the Court in Fiscal Year 2022, the VA Office of General 
Counsel agreed that the Board made substantial errors in their 
decision-making and recommended a Veterans Court remand the 
cases back to the Board. What do you think are some of the 
primary factors contributing to the high rate of necessary 
corrections? What are some of the most common errors your team 
has encountered? Also, do you think it is important for 
individual Board employees to learn from their errors so that 
future veterans are not harmed in the same way?
    Ms. Flynn. Thank you. Yes, my office represents the 
Secretary before the Court of Appeals, and so we do so keeping 
in mind that the Secretary is the Nation's advocate for 
veterans. With that backdrop, plus the fact that this is a 
uniquely pro-claimant system, the end result is there are often 
times where we are the ones working with appellant's counsel to 
identify error and send it back for corrections.
    Regarding the typical or the most prevalent errors would be 
a failure in the duty to assist. Most of those center around 
inadequate exams, the medical exams, and then inadequate 
reasons or bases. That centers on the explanation that was 
given for the reason for the decision. That is a tough--it is 
tough to quantify, it is tough to describe. It is very fact-
specific, and it may hit one judge differently than another, 
the same way as it does different attorneys.
    The joint motions for remand or the joint motions for 
partial remand are the product of negotiation between the 
parties, and oftentimes there is a lot of horse trading. The 
case may have multiple issues when it started at the regional 
office (RO), some of those were granted or fell apart, fell 
away as they worked their way. The Board may have granted some 
of those, still denied others. When it gets to the Court of 
Appeals, any number of those can be ripe for a decision. They 
may seek a----
    Mr. Ciscomani. I am going to jump in here because I do not 
want to run out of time. To finish up here, if you can just 
briefly tell me how important this is or how are individual 
employees learning from their mistakes or their errors through 
the process to make sure it does not happen again?
    Ms. Flynn. Yes, sir. We have several touch points that we 
have with the Board where we have been working. We provide 
training on a regular basis. We also are in regular meetings 
with other components of VA. We have quarterly VLJ training. We 
participated in the Board's conference in April. We participate 
in the AMA work group with both VBA and the Board. All of those 
are opportunities for----
    Mr. Ciscomani. Well, thank you for highlighting that. When 
we look at over 80 percent, just roughly 80 percent, of appeals 
having some kind of mistakes, I am hoping that these training 
or sessions that are happening to make sure it does not happen 
again, there is a measurable way to prove how productive they 
are actually being, because with 80 percent does not seem that 
that is really working. I encourage you to, you know, look into 
that.
    Mr. Arnold, I have good two questions for you real quick. 
When the VA Office of Administrative Review catches unnecessary 
remands by the Board, how does the Board's quality assurance 
and training offices, back on the same topic here, ensure that 
all Board employees learn from those errors that they made so 
they can prevent errors from happening again? Same vein of the 
question, but now to you.
    Mr. Arnold. Yes, sir. That is an excellent question, 
actually, because every individual error that is called is 
transmitted directly to the judge and copying their SES-level 
judicial supervisor, a deputy vice chairman, and so they are 
getting that directly. However, in a combined basis, they are 
publishing monthly for the entire Board a digest of errors. 
There are Word documents attached to that that highlight the 
common trends and tips for avoiding for all employees, and that 
is distributed on a monthly basis.
    Mr. Ciscomani. Appreciate that. I am out of time. Just real 
quick, I will throw in there was the 228 million that have been 
mentioned by several of my colleagues already. As an 
appropriator myself, I am looking at this very carefully and 
see that the--and your written testimony. The written testimony 
today mentions nothing about the Board leadership and what it 
is doing to ensure that every single veteran can accurately get 
answers on their claims and appeals.
    If, you know, throughout the rest of the questions sort of 
jump in on if there is anything that the Board has done to 
improve the quality assurance program since July 2021. Two 
hundred and 20 million is a lot of money. Again, as an 
appropriator, I am looking at this very carefully.
    Mr. Arnold. Thank you, sir.
    Mr. Ciscomani. Thank you.
    Thank you, Mr. Chair, yield back.
    Mr. Luttrell. Thank you, Mr. Ciscomani.
    Mr. McGarvey, sir, you are recognized for 5 minutes.
    Mr. McGarvey. Thank you, Mr. Chairman. Thank you all very 
much for being here.
    Mr. Arnold, last time you were before the subcommittee, I 
raised some concerns about workforce issues at BVA. I just want 
to continue in that vein today because you have heard a lot 
this morning and, as you know, our veterans deserve the best 
care possible. Also, that our public servants at the BVA ensure 
that our vets get fair and objective decisions. They are the 
bread and butter of the whole operation. That is why I think it 
is important to emphasize that BVA needs increased 
appropriations, resources, and tools to tackle the caseload 
backlog and hire more staff. We have got to ease the burden on 
our processing workforce.
    We are seeing in real time how successful the PACT Act has 
been in hiring and beefing up the VA to address the increased 
caseload. I know it is working in my district in Louisville, 
Kentucky. I just want to float the idea now of the need for a 
similar mechanism across other sectors of the VA, specifically 
with the BVA.
    Mr. Arnold, in the last hearing, I highlighted BVA's 7 
percent attrition rate in Board attorneys. We talked about 
that. You stated it has decreased in recent years, which is 
great, but, as you know, is still above average, and we have 
got to continue to get that down.
    I also asked you about the decision to implement a limited 
competitive GS-14 career path for new hires instead of the 
automatic GS-14 career path. I was concerned to read in AFGE's 
testimony today that Board leadership has not responded to 
AFGE's request to reconsider this decision.
    Mr. Arnold, when do you think you can get them an answer 
by?
    Mr. Arnold. Sir, I do not know that I have that. I think it 
may have gone to one of our other executives, but I will check 
on that. I imagine it is not long. If it was very recent, then 
I for sure have not seen it.
    I know there was a prior inquiry some months ago while 
there is something in arbitration. That complicated the 
response because of the arbitration. I do not know if that is 
what we are talking about or not. Yes.
    Mr. McGarvey. Whatever you can do to get that answer to 
them, obviously, and, like I said, this is to make sure our 
veterans are getting that top quality care they deserve.
    Mr. Arnold. Yes, sir.
    Mr. McGarvey. I do want to turn to one tweak that AFGE 
recommended in their testimony, and I thought it was 
compelling. They recommend that the Board create a competitive 
journeyman, nonsupervisory, GS-15 attorney position. These GS-
15 positions would reward hardworking employees for their 
contributions and incentivize retention. As you know, this 
model already exists in the VA Office for General Counsel, and 
I think it would be a really good opportunity to address that 
attrition rate which we talked about. I just want to flag for 
you all, for my colleagues, something I would like to explore 
as a legislative initiative.
    Just along those lines, Mr. Arnold, what impact do you 
think creating 100 to 200 competitive journeyman, 
nonsupervisory, GS-15 attorney positions would have on 
recruitment and retention at BVA?
    Mr. Arnold. It is hard to know for sure what it would have 
on recruitment and retention, but I cannot imagine it would 
have a negative impact.
    I do--one of the things we look at in our workforce model, 
we run a very flat organization, and that has been super 
challenging for us. Around our GS-15 ranks, we have plussed up 
about 33 percent, at least during my tenure. In the last couple 
of years, I think we had roughly 20 GS-15 positions that were 
available at the Board and now it is more like 30, which is 
good. Those are the positions, quite frankly, that we deplete 
and move into the judge ranks internally. In fact, we 
completely emptied our bench recently on that. This is 
something we are looking at in terms of how we organize to 
leverage the different grade structures that are available.
    I do not have help with me, behind me today back-benching 
because we put everybody on the line to try to serve as many 
veterans as we can. One of the things we try to run lean on is 
not having people who are not directly serving veterans. We are 
balancing those two things.
    Mr. McGarvey. Obviously, we want our veterans to get, 
again----
    Mr. Arnold. Yes, sir.
    Mr. McGarvey [continuing]. that is the care they deserve, 
the care they have earned. I appreciate that.
    I yield back.
    Mr. Luttrell. Thank you, Mr. McGarvey.
    I would like to thank the panel for coming today. Ms. 
Curda, thank you for all of the evidence that you pushed out in 
front of us.
    Mr. Arnold, as a military man, we do not jump out of a 
helicopter or an airplane. We do not even back up a pickup 
truck without a plan of attack, from step off to mission 
complete. We do not do that. I can assure you, sir, I will be 
waiting for the answers and the processes that you put together 
from what she put out today. Is that fair?
    Mr. Arnold. Fair enough, sir. In fact, I could not agree 
more with some of those recommendations. In fact, one is duh, 
we should have been done doing that a long time ago.
    Mr. Luttrell. Yes, sir, I agree. Okay, so panel one is 
concluded. Thank you very much.
    Panel two, please be seated.
    [Recess.]
    Mr. Luttrell. Welcome, everyone, and thank you for coming 
today. Our second panel of witnesses will include Mr. Shane 
Liermann of Disabled American Veterans; Ms. Diane Boyd Rauber 
of the National Organization of Veterans Advocates; Mr. Michael 
Figlioli of Veterans of Foreign Wars; Mr. Zachary Stoltz of 
Christian--or excuse me, of Chisholm, Chisholm, & Kirkpatrick; 
and Mr. Douglas Massey of the American Federation of Government 
Employees.
    I ask the witnesses to please stand and raise your right 
hand.
    [Witnesses sworn.]
    Mr. Luttrell. Let the record reflect that the witnesses 
have answered in the affirmative.
    Thank you all for being here today. Mr. Liermann, you are 
now recognized for 5 minutes to deliver your opening statement.

                  STATEMENT OF SHANE LIERMANN

    Mr. Liermann. Thank you. Chairman Luttrell, Ranking Member 
Pappas, and members of the subcommittee, we are grateful for 
the opportunity to appear before you.
    As you know, DAV is a congressionally chartered and VA-
accredited veteran service organization that provides claims 
and appeals representation to veterans and their families at no 
cost. In Fiscal Year 2022, DAV represented nearly 20 percent of 
all appeals decided by the Board of Veterans' Appeals. My 
remarks today will highlight DAV's concerns and recommendations 
for the legacy and AMA appeals remands and the Board's intake 
and docketing of appeals.
    Mr. Chairman, in the appeals legacy system, the Board is 
obligated to remand cases for duty to assist errors that occur 
at any time while the veteran's appeal was pending. If a 
veteran's case is remanded, the file will go back to the agency 
of original jurisdiction (AOJ). In each remand, the Board will 
lay out specific remand instructions to which the AOJ must 
adhere to.
    In 2020 and 2021, the Board's legacy remand rate was 40 
percent. In 22, the remand rate rose to 42 percent. Per the 
last quarterly report for 23, the legacy remand rate was 44 
percent.
    Appellants have the ability to submit new evidence 
throughout a legacy appeal. While we acknowledge that this 
could be a factor for the increase in remands, there are clear 
issues regarding the quality of these local decisions, which we 
believe can be traced back to training.
    In 2020 and 2021, the Board's AMA remand rate was 28 
percent. In 22, the rate rose to 29 percent. Per the last 
quarterly report for 23, the AMA remand rate was 32 percent.
    One of the original intents of the AMA was to reduce the 
amount of remands by the Board. However, the increased rate of 
AMA remands establishes that VBA claims personnel are 
committing a high volume of duty to assist errors pre-decision.
    The Board's legacy and AMA remand decisions both increased 
during 22 and 23. We recommend the Board to not just determine 
the root cause of these increased remands, which we believe are 
mostly development errors caused by the AOJs, but provide 
specific training on these issues with VBA.
    It is imperative that the Veterans Benefits Administration 
focus the training on the law, not internal manuals which are 
not legally binding.
    Mr. Chairman, we have concerns over the intake and 
docketing of AMA appeals. Although the clerk of the Board was 
created in 2020 to correctly docket appeals, DAV continues to 
discover AMA appeals that are deemed invalid and should not 
have been docketed.
    For example, some veterans who have received a proposed 
reduction from VBA are filing an appeal directly to the Board. 
However, since this is a proposed action and not a final 
decision, the issue is not under the Board's jurisdiction and 
thus is an invalid appeal. This may not be discovered for 
months or longer while the veteran is completely unaware. In 
many instances, this has negatively impacted veterans as they 
could not take other timely action.
    In 2021, the Board learned that a number of veterans may 
have had their Board appeal forms mistakenly rejected for being 
untimely. In January 22, the Board sent out another notice that 
delays to the Board's ability to mail correspondence may have 
impacted timely submissions.
    Mr. Chairman, given the problems with the intake and 
docketing of AMA appeals, we recommend that a decision by a 
veterans law judge on the timeliness of the notice of 
disagreement (NOD) be added to the appeals process.
    We believe that most appeals can be tracked back to 
development errors in the claims process, which really is 
verified by the increased rates of legacy and AMA remand 
decisions. Without concentrated training to correct these 
issues, veterans and their families will continue to experience 
appeals with extremely long waiting periods just for VA to 
finally get it right. We urge the Board to take action to 
improve the docketing of appeals as well, as veterans should 
not suffer from an inadequate intake process.
    This concludes my testimony, and I look forward to any 
questions you and the subcommittee may have.

    [The Prepared Statement Of Shane Liermann Appears In The 
Appendix]

    Mr. Luttrell. Thank you, sir. The written statement of Mr. 
Liermann, will be entered into the hearing record.
    Ms. Rauber, you are now recognized for 5 minutes to deliver 
your opening statement.

                 STATEMENT OF DIANE BOYD RAUBER

    Ms. Rauber. Chairman Luttrell, Ranking Member Pappas, and 
members of the subcommittee, NOVA thanks you for the 
opportunity to testify on ensuring high-quality decision-making 
at the Board of Veterans' Appeals.
    NOVA members, who are accredited attorneys and agents, 
practice all across the country. Nearly all of them represent 
veterans, family members, survivors, and caregivers before the 
Board. NOVA participated in the original discussions leading to 
the passage of the AMA, and we welcome VA's statement today 
that they are ready to come back and sit down at the table and 
talk about some of the issues with it.
    At a recent legislative hearing, Chairman Luttrell noted 
that the Board carries a very heavy rucksack. We recognize the 
ongoing efforts of Board employees to deliver accurate 
decisions and timely benefits.
    We also thank Congress for increasing the Board's budget 63 
percent since 2019. These resources, however, must translate 
into many more decisions in the years ahead.
    Unfortunately, stakeholders have minimal insight into the 
quality assurance program employed by the Board. Today's GAO 
report details the problems with that program. We urge the 
subcommittee to continue its oversight to ensure their 
recommendations are implemented and the results are transparent 
to the public.
    Much of the Board's focus is on court remands. The Board 
has mischaracterized court remands, stating that remands are 
done to correct harmless error, and court clerks create 
remands. A remand is either a negotiated agreement between 
counsel for the parties or a court order because there is a 
recognized error in a decision.
    There is also the erroneous perception that reasons and 
bases remands do not result in benefits for veterans. The 
subcommittee has been provided with statistics that indicate 
otherwise, and our members can attest to this fact through 
their experience.
    We take issue with the vice chairman's characterization 
today of our members' efforts. The GAO report provides 
recommendations on how the Board can analyze court remands to 
improve decision quality and avoid repeating mistakes that 
result in remands.
    In fact, court remands are not the main problem in this 
system. Rather, a far more urgent matter is the continuing high 
rate of remands from the Board to VBA. AMA remands, while 
somewhat lower, still hover around one-third.
    Unfortunately, data on the Board's website does not provide 
insight as to the causes for remands. NOVA members, however, 
report AMA remands are often due to the same reasons many 
remands occur in legacy cases: inadequate or unnecessary VA 
exams and development.
    Of course, one goal of the AMA was to reduce remands. 
Veterans relinquished the right to retain their docket date on 
remand in exchange for VA's commitment to issue faster 
decisions, particularly in the direct review docket. There was 
an assurance that there would be more up or down, grant or deny 
decisions. Veterans relied on this commitment when opting into 
the new system at VA's urging. With a third of decisions being 
remanded in the AMA, that expectation is not being realized. We 
urge Congress to allow represented veterans to waive the duty 
to assist at the Board to reduce remands.
    The continuing cycle of remands is not solely the Board's 
problem. VBA also plays a role by frequently failing to obtain 
adequate exams when needed, failing to properly consider 
private medical evidence and apply the benefit of the doubt, 
and ordering unnecessary exams.
    When you reduce remands, you reduce the backlog. When you 
reduce the backlog, employees have a more manageable workload. 
When employees have a more manageable workload, they produce 
higher quality decisions. Higher quality decisions provide 
better outcomes for veterans, which is a common goal we all 
share.
    The Board states that it is examining the root causes of 
continuing remands. We urge the subcommittee to continue its 
oversight on this issue.
    Finally, the subcommittee sought feedback on Board 
determinations of whether a notice of disagreement has 
initiated an appeal. The Court of Appeals for Veterans Claims 
recently issued a decision in the Kernz case. The Court found 
Mr. Kernz' appeal was moot because the Board corrected its 
error and docketed the appeal it found untimely. However, that 
case revealed other veterans who received such letters were not 
so lucky. Counsel for Mr. Kernz estimated that somewhere 
between 1,500 and 2,000 other claimants received erroneous 
letters. The Board was unable to accurately determine how many 
were issued because of problems with its electronic systems. 
Although the Board published a notice, without an accurate way 
to determine exactly how many claimants were impacted, there is 
no doubt there are veterans who have no idea that their appeal 
could be reinstated.
    We thank Chairman Luttrell for introducing H.R. 5891, which 
would require the Board to include a written determination of 
whether the Notice of Disagreement was adequate and timely. It 
is critical that this basic jurisdictional question be answered 
by the decisionmaker and not by an administrative employee.
    We thank you again for the opportunity to testify today on 
this important topic and are happy to answer any questions.

    [The Prepared Statement Of Diane Boyd Rauber Appears In The 
Appendix]

    Mr. Luttrell. Thank you, ma'am. The written statement of 
Ms. Rauber will be entered into the hearing record.
    Mr. Figlioli, you are now recognized for 5 minutes to 
deliver your opening statement, sir.

                 STATEMENT OF MICHAEL FIGLIOLI

    Mr. Figlioli. Thank you. Chairman Luttrell, Ranking Member 
Pappas, and members of the subcommittee, on behalf of the men 
and women of the Veterans of Foreign Wars and it is auxiliary, 
thank you for the opportunity to provide testimony with regard 
to the BVA and its practices.
    The passage of the Appeals Modernization Act was to 
streamline the appeals process. Under the legacy appeals 
system, appellants too often had to endure lengthy delays of 
months, sometimes years, to navigate a confusing and complex 
structure, and some are still now stuck in that outmoded 
system.
    A Notice of Disagreement is the first step in the appeals 
process for veterans seeking a review of their disability claim 
before the VA. While the NOD is a formal expression of 
disagreement with the decision, historically it does not 
constitute an appeal to the BVA. The legacy NOD initiated the 
appeals process, serving as the first official notification to 
VA that the veteran disagreed with their decision. The veteran 
would then have to complete Form 9, certifying the appeal to 
the BVA for docketing and review by a veteran's law judge.
    Under the legacy appeal system, this is where the appeals 
often get stuck in the churn based on docket date, then 
awaiting assignment and review by their advocate, who would 
then submit an independent hearing presentation on their 
behalf. What became clear to VFW was that this process was 
archaic and generally unnecessary. VFW determined that the 
Independent Hearing Presentation (IHP) was not based on law or 
regulation and likely a holdover from practices years ago. If a 
quality argument was of record, the appeal could proceed 
directly to the judge after our staff completed the quality 
review.
    VFW has eliminated its excess workload of legacy appeals. 
For more than a year, we have been at functional zero, which 
means that legacy appeals continue to churn through the remand 
system, reappearing at the BVA at any time.
    The Appeals Modernization Act was intended to allow for a 
review in a timelier fashion. VFW is concerned with the excess 
workload in the AMA inventory. By focusing mostly on legacy 
appeals reduction and cases advanced on the docket, the 
remaining appeals languish, while more appeals continue to be 
certified to the Board. Hiring more staff is an excellent step 
and one that we applaud. Delivering more decisions is 
admirable, but they must be accurate and timely, and not just a 
number in a performance plan.
    The remand process from the BVA to VBA is a crucial aspect 
of adjudication, and often the most confounding. Workflow may 
not keep pace with the progression of the appeal. When the BVA 
identifies deficiencies in the appeals process, it remands the 
case back to VBA for further action. This acknowledges that 
some cases may not have been thoroughly examined in the initial 
stages. It also reflects VA's commitment to ensuring a fair and 
comprehensive review of veterans claims.
    VFW has found if the record was fully associated with all 
the evidence or a complete review completed prior to a 
decision, remands are unnecessary. VFW is aware that the remand 
rate for legacy appeals is over 40 percent. The typical legacy 
appeal has been remanded at least twice or more. The purpose of 
AMA was to eliminate remands altogether.
    It is the VFW's position that communication between the BVA 
and VBA is critical during this process. Clear directives that 
decision-making must comply with will help streamline further 
development of cases. Effective collaboration between entities 
is essential to ensure that the remand process serves its 
purpose without unnecessary complication.
    The VBA relies on various sources of data to include data 
from the BVA. How VBA uses this data is essential in 
understanding their commitment to continuous improvement.
    VFW would like to thank the VA undersecretary for benefits 
and his staff for showing a willingness to incorporate 
important changes in law or administrative process into their 
training. By using remand data and scrutinizing these patterns, 
VBA can pinpoint areas where its process may need refinement. 
This will allow VBA to address systemic issues and help guide 
the development of targeted training programs to improve 
production.
    The BVA has a substantial role in the adjudication of 
claims. Its decisions are at times subject to review by the 
CAVC, which provides legal guidance and precedents that may 
influence how cases are adjudicated. This increases accurate 
application of the law. If a BVA decision is overturned, it 
proves that there may be flaws in the initial adjudication. BVA 
must involve continuous evaluation of its decisions in 
identifying errors, then implement corrective measures that 
improve quality and reduce the likelihood of future reversals.
    While VFW was pleased with some of the reforms and changes 
made at the BVA over the last several years, there is work to 
be done. The AMA is a framework whose intent must continue to 
be revisited to keep pace with changes in regulation.
    Chairman Luttrell, Ranking Member Pappas, this concludes 
our testimony, and I am happy to answer any questions you may 
have.

    [The Prepared Statement Of Michael Figlioli Appears In The 
Appendix]

    Mr. Luttrell. Thank you, sir. The written statement for Mr. 
Figlioli will be entered into the hearing record.
    Mr. Stoltz, you are now recognized for 5 minutes to deliver 
your opening statement.

                   STATEMENT OF ZACHARY STOLZ

    Mr. Stolz. Chairman Luttrell, Ranking Member Pappas, and 
members of the subcommittee, thank you and good afternoon. I am 
Zach Stoltz, a partner with Chisholm Chisholm & Kilpatrick. CCK 
is a law firm with dozens of VA-accredited attorneys and 
advocates handling VA benefits claims at all levels of the 
process. I have personally spent the bulk of my career 
practicing before the U.S. Court of Appeals for Veterans Claims 
and the U.S. Court of Appeals for the Federal Circuit. As part 
of a pro bono program with DAV, my office has handled over 
15,000 appeals at the CAVC--as part of a pro bono program with 
DAV, my office has handled over 15,000 appeals at the CAVC over 
the past 15 years.
    The Board of Veterans' Appeals was given a herculean task 
with the passage of the Appeals Modernization Act. Already 
struggling with huge backlogs, it was expected to work down 
legacy cases while simultaneously adjudicating cases in the 
brand new AMA system. There is no question the men and women at 
the Board work hard every day to serve our Nation's veterans 
and their families. Congress and taxpayers have supported the 
Board with significant investments, and so far production has 
not reflected this.
    Since Fiscal Year 2020, the Board's budget has surged by 
approximately 61 percent, escalating from $174 million in $2020 
to $285 million in Fiscal Year 2023. Strikingly, the increase 
in budgetary allocation has not proportionally translated into 
enhanced productivity. In comparison, the Board only decided .5 
percent more appeals in 2023 than in 2020.
    The chairman's latest report lays some of the blame for the 
Board's inefficiency on the Court of Appeals for Veterans 
Claims. In my nearly 20 years of practice, I have noticed it is 
not uncommon for some at the Board to complain about the 
Court's oversight, like the way District Courts complain about 
Appellate Courts and Appellate Courts complain about the 
Supreme Court.
    Putting aside for the moment the mistaken notion that many 
remands are simply for the Board to explain itself better, the 
CAVC remanding 6-to 7,000 cases a year cannot explain why the 
Board is not deciding more than an average of 95,000 cases over 
the past 4 years. The Board simply must adjudicate more cases. 
It is the inescapable bottom line.
    There is a role for advocates to play in this process. In 
our written testimony, CCK proposed that the Board more 
routinely accept waiver of director of compensation 
consideration of 4.16(b) claims and the duty to assist. Waiver 
is not to be taken lightly. The duty to assist is a vital part 
of VA's nonadversarial adjudicatory system. With the growing 
sophistication of advocates, both in the VSO and private bar 
communities, there is a place for knowing waiver. As many of 
the witnesses here today noted, the remand rate from the Board 
to the regional offices is very high, allowing for advocates 
and the veterans they represent to waive certain procedures 
when a record is fully developed will move cases along faster.
    This also makes more sense as we see the promises of the 
AMA come more into focus, but also some of the pitfalls. 
Remands are far more devastating in the AMA because veterans 
lose their place in line at the Board when their cases are sent 
back to the regional offices.
    Everyone in this room today works to make the VA 
adjudicatory process better for our Nation's veterans. The 
Board is a linchpin and, frankly, the place where tens of 
thousands of veterans can receive justice. This hearing and 
hearings like it are vital to ensuring clear-eyed oversight of 
the Board's results.
    I appreciate being here today, and I look forward to your 
questions.

    [The Prepared Statement Of Zachary Stolz Appears In The 
Appendix]

    Mr. Luttrell. Thank you, sir. Mr. Stoltz will be entered 
into the hearing--the written statement of Mr. Stoltz will be 
entered into the hearing record.
    Mr. Massey, you are now recognized for 5 minutes, sir, to 
deliver your opening statement.

                  STATEMENT OF DOUGLAS MASSEY

    Mr. Massey. Chairman Luttrell, Ranking Member Pappas, and 
members of the subcommittee, thank you for inviting the 
American Federation of Government Employees to participate in 
today's hearing. My name is Douglas Massey, and for the past 7 
years, I have had the honor of serving as President of AFGE 
Local 17, representing approximately 1,000 attorneys and 
support staff at the Board of Veterans' Appeals. It is a 
privilege to offer insights to this subcommittee on ways to 
enhance the Board's appeals process for our Nation's veterans.
    The foundation of well-informed decisions lies in the 
perspectives of those directly engaged in the work. This is 
where AFGE plays a crucial role. My testimony today aims to 
highlight areas where both Board leadership and this 
subcommittee can support dedicated Board attorneys, focusing on 
recruitment and retention, training, and workload and 
performance.
    The first issue I will address is a career path for Board 
attorneys, which Board leadership downgraded from a GS-14 to a 
GS-13. This undermines the VA's and this subcommittee's goal of 
recruitment and retention of talent. Board management has 
effectively limited the career path for Board attorneys, 
widening the competitive pay gap among attorneys in the public 
and private sectors. We firmly believe that this committee 
shares our commitment to ensuring that veterans claims receive 
the highest level of attention.
    Beyond restoring the GS-14 career path, we further propose 
that the Board create a nonsupervisory GS-15 attorney position. 
Establishing this possibility for attorneys would significantly 
contribute to the long-term recruitment and retention. It is 
noteworthy that nonsupervisory GS-15 attorneys exist within 
VA's Office of General Counsel, setting a precedent. We ask the 
committee to take legislative action.
    Second, the Board's decision to hire Board judges without 
any veterans law experience is equally disruptive and 
detrimental to the Board's mission. Historically, Board judges 
were required to possess a minimum of 7 years of experience in 
veterans law, acknowledging the intricate nature of the work. 
Several years ago, the longstanding 7-year requirement was 
abruptly eliminated from the Board judge hiring criteria. The 
result of this decision has been disastrous. Experienced judges 
are signing or finalizing three times as many decisions per 
week compared to their inexperienced counterparts.
    In addition to fewer decisions, attorneys complained that 
the inexperienced Board judges struggle with approving quality 
decisions, requiring that attorneys train the Board judges for 
whom they work. Similarly, many of the Board's experienced 
Board judges are now tasked with training their new, 
inexperienced colleagues, which detracts from time they could 
devote to signing decisions. Board judges are already under 
immense pressure to review and sign at least 20 decisions a 
week, conduct numerous hearings, and mentor attorneys.
    Furthermore, the hiring of inexperienced Board judges has 
demoralized attorneys because it has foreclosed promotion 
opportunities to these coveted positions. Many surveyed 
attorneys have indicated they plan on retiring earlier than 
expected. AFGE requests that the committee take action and 
propose codifying the 7-year experience requirement for entry-
level Board judges into law.
    Third, the Board's recent failure to prioritize quality 
through effective training has left attorneys frustrated and 
demoralized. AFGE, recognizing this gap, initiated its own 
successful training program. Despite the program's success, 
upper management has yet to implement a similar initiative. An 
alarming example of the training gap is the Board's offering of 
only 2 hours of mandatory training on the PACT Act in the past 
year compared to VBA's 15 hours. This inadequacy leaves 
attorneys unprepared to navigate the nuances of the PACT Act, 
risking errors and inadequate decisions for veterans. 
Insufficiently trained attorneys contribute to delays, a 
backlog of cases, and ultimately hinder veterans access to 
benefits.
    Last, while the Board's output is a priority, an exclusive 
focus on quantity over quality harms veterans and disrupts the 
entire appeals process. AFGE strongly urges the Board to lower 
the quota, allowing sufficient time for the required de novo 
review of claims files and the issuance of high-quality 
decisions. AFGE members believe that making straightforward 
changes to Board attorneys' compensation, promotion 
opportunities, training, and performance measures, together 
with setting minimum experience levels for Board judges, will 
greatly benefit the productivity and effectiveness of the 
Board.
    We look forward to working together collaboratively to make 
the changes we can. Thank you, and I look forward to answering 
your questions.

    [The Prepared Statement Of Douglas Massey Appears In The 
Appendix]

    Mr. Luttrell. Thank you, sir. The written statement of Mr. 
Massey will be entered into the hearing record.
    We will now move to questioning. I recognize myself for 5 
minutes.
    The remaining World War II vets into Korea, into Vietnam, 
into the Gulf War, and into the two wars we previously fought 
that just recently ended, all of those servicemembers or 
veterans are moving into the Veterans Affairs organization. The 
amount of weight that that Department has to shoulder now that 
our generation, my generation, are moving out, they are doing 
everything they cannot to scuttle. We are asking them to do 
everything in the right for us, and they are trying to shoulder 
that. I want that to be said right now, and I want them to hear 
me say that.
    Each one of you listed off multiple issues that need to be 
addressed. Absolutely. Mr. Stoltz, you listed off--the weight 
of your statement holds a lot to me.
    Mr. Massey, your discussion is about us downgrading the GS 
levels and the caliber of attorneys that we are going to get 
inside the VA system, correct?
    Mr. Massey. Could you please repeat the question?
    Mr. Luttrell. Your statement revolved around the type of 
attorneys that the VA will be receiving because we lowered the 
GS levels, correct?
    Mr. Massey. Correct.
    Mr. Luttrell. All right. Here is my issue. We are putting 
all of these issues out in the open that need to be addressed, 
and we are asking the VA to address them in its entirety. Here 
is 500 issues that you guys are absolutely failing on. That big 
machine cannot work like that as hard as it tries.
    From the GAO statement over the past years, I keep hearing 
the exact same thing, that we are asking to accomplish these 
many things. I am going to ask this question, and I want each 
of you to answer it. If you had to pick one issue that I could 
hand to Mr. Arnold and say, you have got 2 weeks to give me an 
answer and 6 weeks to fix it, and we take smaller bites of this 
grand apple that we are trying to swallow instead of sitting in 
these hearings over and over and over, what does that look 
like?
    Mr. Liermann, if you had one thing you could say, Mr. 
Arnold, this is absolutely what I need to be done for our 
veterans that I think would move the needle in the right 
direction? Do not give me the legislation that we are pushing 
already. I need concrete facts. What is that one thing?
    Mr. Liermann. Training.
    Mr. Luttrell. Training. I hear training all the time. Okay? 
VA employees, from what I understand, only have to come into 
the VA brick-and-mortar twice a month. What does training mean?
    Mr. Liermann. I think training in this instance means 
looking at why these remand decisions or these errors are being 
made and sitting down and explaining it to the attorneys at the 
Board and, additionally, explaining this to the employees at 
VBA.
    Mr. Luttrell. Is that written out somewhere? Somewhere in 
their organization or your organization, is it, because if we 
go into a meeting and we just talk to each other, you are going 
to retain about 2 minutes of the information that I am saying. 
Is what we are asking for from our organizations written down 
somewhere? I can hand that to him and say, push this down 
inside your organization so we can change this. That is what we 
need. If that does not exist, sir, let us get that done.
    Mr. Liermann. Roger.
    Mr. Luttrell. Okay.
    Ms. Rauber.
    Ms. Rauber. Well, Vice Chairman Arnold said a little 
earlier that Board attorneys and judges are too often going 
back to the legacy system style of doing things and continuing 
to remand when they should not be. That is something that was 
promised under the AMA, so I think you have to be looking at 
why you are remanding cases that should not be remanded. You 
cannot solve this problem if you cannot figure out why you keep 
remanding cases.
    Mr. Luttrell. Mr. Figlioli.
    Mr. Figlioli. Yes, thank you. It goes hand-in-hand with 
training and what Diane just said, quality review. If you are 
putting out a product that does not meet the standard, then how 
do you know to fix those issues? We have to train them better. 
We have to agree on what that is going to look like. They have 
to know what the process is, understand the law, and apply it 
properly, so we do not end up in the constant remand cycle. We 
do not end up with things going back and forth between the BVA 
and the VBA. That lawyer, that law judge, that staff attorney 
needs to know what quality product they need to produce for a 
veteran in order for that appeal to be heard, but then also for 
them to be successful as well.
    Mr. Luttrell. Mr. Stoltz.
    Mr. Stolz. More decisions from the Board. The process has 
to keep moving. The only way that veterans are going to be 
served is if the line keeps moving, and there have to be more 
decisions.
    Mr. Luttrell. More decisions by the Board.
    Mr. Stolz. It is not going to----
    Mr. Luttrell. See me after class. Sorry.
    Mr. Massey.
    Mr. Massey. Yes. Veterans are not widgets. They are 
warriors. I think we need a different culture at the Board, a 
learning culture, a growth culture. I think we are kind of all 
saying the same things.
    Last night, briefly, I talked to an attorney. He said he 
wanted to be switched to a different veterans law judge, and I 
asked why. He said he is a new judge, does not understand the 
law. I said, what are the conflicts? He says, I would like to 
grant a lot of these decisions. He wants to remand them or deny 
them.
    That is only one issue I brought up, is the inexperienced 
veterans law judges, but proper training, proper compensation, 
treating the workforce with respect. You know, any 
organization, any enterprise, I mean, everybody talks about 
employee engagement, you cannot have a service organization if 
you are going to treat the workforce the way, you know, we are 
treated at the Board of Veterans' Appeals.
    Mr. Luttrell. Thank you, sir.
    Mr. Pappas, you are recognized for 5 minutes, sir.
    Mr. Pappas. Thank you, Mr. Chairman. Obviously at BVA, we 
are grateful for the attorneys, the judges that are so 
essential in that system to ensure that it operates 
efficiently, but also, most importantly, effectively and 
accurately for the veterans that are, you know, working toward 
achieving what they deserve.
    As such, issues pertaining to training, I think, are 
central, and several of you have mentioned that. Mr. Massey, 
you were talking earlier about the need for training the way 
AFGE has, I guess, put together a training program in absence 
of something that you thought would be more effective coming 
from the Board. Can you discuss a little bit about what that 
AFGE training program looks like and what recommendations you 
would have for a more permanent solution?
    Mr. Massey. Yes. Management identified, 1 year, 40 
attorneys who were struggling and failing, and they were 
supposed to provide the training and assistance under our 
Collective Bargaining Agreement. One of our stewards, Dr. 
Benton Komins, put together a group of three other union 
stewards, and he worked with these people every week on 
efficiency training, on understanding the law. Dr. Komins has 
continued doing this by himself. He has recruited other 
attorneys to help and it is kind of an informal training 
program.
    I have urged Board leadership to have a similar group where 
you take five or six attorneys off production, have a group 
where they can help anybody out. It can be anonymous. The 
problem is that the Board is pennywise and a pound foolish. 
They do not want to take three, four, or five attorneys off 
production to do this. This is an investment.
    The 7 percent attrition rate, that is not accurate. We have 
hired probably 4-or 500 brand new attorneys since 2017. They 
are on a 2-year probationary period. They are not considered 
employees. They are considered applicants. Out of those 4-or 
500 people, we have probably lost well over 50 percent. The 
attrition rate, their training has been--the attorneys doing 
the training are very committed. We have a very flawed system, 
and I think we need management to address it.
    Mr. Pappas. Well, I agree that the training issues 
pertaining to morale and retention are just as important as 
some of the technical tweaks that we have been exploring this 
morning.
    Can you talk a little bit more about the quotas and 
performance metrics that have been an issue and how these 
changing standards affected the well-being of attorneys? In 
your opinion, what reasonable workload would balance 
productivity with maintaining high-quality decision-making for 
veterans?
    Mr. Massey. Well, right now we have an annual quota of 156 
decisions or 491 issues. We believe it should be lower, around 
125, 130. We know that you cannot dictate a quota for the Board 
of Veterans' Appeals. However, Congress has--what is a 
requirement is that each decision be done de novo review, 
meaning looking at the whole record fresh and reviewing it. 
That is actually impossible with this quota.
    Everything is online, but we used to have paper files and 
some of these came in boxes. It would be like, here is a box of 
medical records. You need to read this. You need to write a 
decision. We need three of these a week.
    It is very demoralizing because the attorneys know that 
they are required to do de novo review. You cannot do that in 
this system, and people struggle. It is almost as though there 
is not a thought from management about what the finished 
product is. Everything is a number.
    I think it needs to be said. This management team, there is 
about seven senior executives running the Board of Veterans' 
Appeals, they are all new except for one. They have never 
written a decision. They have never signed a decision. I think 
they are struggling because I do not think they know what they 
are doing.
    Mr. Pappas. Thanks for those comments.
    Ms. Boyd Rauber, if I could turn to you. You mentioned a 
comment in your testimony that we heard during the first panel 
about the supposed way that accredited attorneys drag out the 
appeals process as a way to drive up fees. Is there a moral 
hazard in terms of the work that gets done in practice for 
these accredited attorneys?
    Ms. Rauber. Well, I am really glad, I hope I will get the 
chance to put that urban legend to rest here today once and for 
all. Attorneys and accredited agents do not drag out cases. VA 
rules and regulations are very clear. There are standards of 
conduct that require them both to work diligently and promptly 
on their cases. Affirmatively, if you are dragging out any case 
you are prohibited from doing that, that would not only get you 
in trouble with VA accreditation, it would also get you in 
trouble with your State bar.
    Veterans talk to each other. VA practitioners talk to each 
other. It would be a terrible business model for you to be 
doing that.
    I would actually argue that accredited attorneys and 
agents, and as well as VSOs with us today, are the people who 
are actually going to VA advocating for those cases to be done 
faster, going to the Court, filing writs, filing motions to 
advance on the docket. They are working diligently every day to 
get these cases resolved.
    Mr. Pappas. Thank you. I yield back.
    Mr. Luttrell. Thank you. Mr. Self, you are recognized for 5 
minutes, sir.
    Mr. Self. Thank you, Mr. Chairman. I have heard one of 
you--and I apologize for stepping out, but the Red Cross is 
having members write letters to our overseas servicemembers. 
Having received many times those, I know how important it is, 
so I missed some of your testimony. I do want to ask, I did 
hear about judges that have no knowledge, no experience. Please 
give me examples of how that harms veterans.
    I believe that was you, Mr. Stoltz. No? Mr. Massey?
    Mr. Massey. I believe it was me, yes.
    Mr. Self. Okay. Mr. Massey.
    Mr. Massey. The story I just related, an attorney called 
me, he wanted to be moved from the current judge he works for, 
and I asked him why. He said, this guy is new. We are clashing. 
He is doing things incorrectly. He wants me to remand things or 
deny claims, and I think they should be granted. It is a very 
difficult job. There was a 7-year requirement every time it was 
posted on USAJobs until 2019, and there was a reason for that.
    I worked with a veterans law judge who is now retired, John 
Ormond. He worked for the Internal Revenue Service (IRS) for a 
long time, and he said that veterans law is far more 
complicated than the tax code, and we know how complicated the 
tax code can be.
    Part of the job of a veterans law judge is to train and 
mentor attorneys. How do you do that? I mean, I started this 
job in 1997, and I always knew if I had a decision I had to 
write, if I had a question, I would go to the judge. I was 
going to decide the decision and say, hey, what do you think 
about this or what do you think about that? I always felt 
confident they would give me correct answers. I do not know how 
attorneys are doing that these days, writing for inexperienced 
veterans law judges.
    Mr. Self. Give me examples of how they are harmed. Is it 
just the delay? How are they harmed?
    Mr. Massey. I do not think they know how to adjudicate the 
appeals properly. We get stories of attorneys that they believe 
it should be done a certain way. The inexperienced veteran--I 
mean, this could be an attorney with 25 years of experience 
that is an expert in veterans law, and there could be somebody 
brand new with 6 months, just had no prior experience, and the 
veterans law judge is going to tell this very experienced 
person how to adjudicate a claim. If the attorney knows that it 
is incorrect and maybe the claim should be granted, maybe it 
should not be remanded, that person has to do what the judge 
says.
    Mr. Self. Well, what is the recourse? Do you have a 
whistleblower option? What is the recourse, because there must 
be a recourse for someone whose superior is not trained well, 
whatever. What is the recourse?
    Mr. Massey. There really is not a recourse. I mean, we do 
what the judge says. I have been in that situation. I have kind 
of fought back a little bit, and it usually does not work out 
so well. That is why----
    Mr. Self. Does anyone else know of a recourse, any of our 
other panel members?
    Mr. Massey. As a solution, we could have it legislatively 
put in there. This was a policy, the 7-year requirement. If 
that could be in legislation, I think that would be very 
beneficial to veterans.
    Mr. Self. I see Mr. Arnold behind you. I would like to 
follow up on the recourse, Mr. Arnold. I think that is an 
important question. If this system is as broken as we have been 
hearing this morning, what is the recourse for subordinates in 
this situation?
    I would also like to follow up on the fact that if the 
veterans law is more complex than the tax code, that is 
something that ought to raise everyone's eyebrow if that is, in 
fact, true. If that is it, we have got a bigger problem than 
what we are discussing here this morning.
    With that, Mr. Chairman, I yield back.
    Mr. Luttrell. Thank you, Mr. Self.
    Ms. Ramirez, you are recognized for 5 minutes.
    Ms. Ramirez. Thank you again, Mr. Chairman. I want to get 
into the questions, and perhaps some of this is also follow up 
from my colleagues.
    Mr. Massey, in your testimony, you discussed a lack of 
training. I think this also goes back to a little bit of what 
you just mentioned a moment ago. In the panel before, I asked 
about training both for new Board attorneys as well as 
continued training for those that have already been there.
    I want to ask you a little bit more about the initiatives 
to train employees. Can you elaborate a little bit more about 
the specifics that you want to see in training? What are the 
ways that you want it to be improved? I want to get that on the 
record.
    Mr. Massey. Are you talking about new attorneys being hired 
or ongoing training?
    Ms. Ramirez. I think both.
    Mr. Massey. Okay. I do have some ideas.
    The new attorneys, they have a 6-month program. It is the 
Professional Development Division. The people running that very 
good, very qualified. They do not have a productivity standard 
during those first 6 months. They are just being trained.
    Now, right after that 6 months, they are given the same 
productivity standard as everybody else, the same quota. I do 
not think that is a very wise decision. I know that one of my 
colleagues worked for Social Security. They did not have the 
same quota the first year that everybody else had.
    Here is another thing, this obsession with numbers and not 
looking at, you know--there was one--one of our members, she--
you know, it was a 24-week training program. She took 10 weeks 
off for maternity leave during that 24-week period. You know, 
she missed a good portion of the training. Instead of giving 
her the 10 weeks of additional training, when the 6 months was 
over for her class, they said, no, you are going on 
productivity, you are on production.
    Another person who had quit recently or a year ago, she did 
not have a computer or something for a good portion, like the 
first month. Instead of giving her that time back, they said, 
sorry, you can catch up with everybody else.
    Nobody really looks at these people like they are people. 
Everybody is a widget. Veterans seem like widgets in some 
respects; the employees do.
    I do know that I have been at the Board for a long time. 
The people there are very dedicated, very committed. When I 
wrote--you know, writing decisions for me was--I really enjoyed 
it. You get a sense of satisfaction, especially when you grant 
somebody 100 percent disability benefits. You know it is going 
to change their life.
    I think instead of just the number 103,000 this year and 
111,000 next year, what is the product we are putting out 
there? I think that needs to be a focus.
    Ms. Ramirez. Yes. No, thank you for that, Mr. Massey. I 
appreciate it.
    I want to shift gears a bit now, and I want to talk about 
the AMA appeals and how they are being handled. My questions 
are directed to Mr. Liermann.
    During your oral statement, you mentioned increase in 
remands for legacy and Appeals Modernization Act appeals. What 
do you feel is the primary reason for the increase in both 
types of appeals and what do you think can be done to correct 
the problem?
    Mr. Liermann. Thank you. I think it really comes down to is 
training and understanding on development errors. As was 
already said, when they are being--cases are being remanded 
back for an exam or clarification of a medical opinion or one 
that was not requested, if there is adequate training to 
understand and explain that remand and that reason to the VBA 
employee, then we have that same training as well with the 
judges. We are going to help eliminate the most common reason 
these cases are being remanded.
    I have been doing this for about 25 years with DAV, and I 
was at our office in Nashville, Tennessee, for a few years. 
Back when the Board of Veterans' Appeals was conducting Travel 
Board hearings, several of the judges would offer training to 
that appeals coach when they were there conducting hearings for 
that week. They would bring in that entire appeals team. They 
would bring in some of the attorneys that even invite us VSOs. 
They would sit down and talk about some of the common mistakes 
and errors that are found. I think that type of training to 
that level involving everybody is what is really needed to help 
avert these problems going forward.
    Ms. Ramirez. Got it.
    I just have one last question before my time is up. In your 
written statement, you noted that the Board conducted 11,000 
fewer hearings in Fiscal Year 2023 than they did in Fiscal Year 
2022. Do you have an idea why this happened?
    Mr. Liermann. Not really, to be quite honest. I mean, I do 
not really understand how you go from conducting 11,000 less 
hearings. There are 72,000 hearings pending right now, and if 
we continue to do less, we are not going to get to the end 
result that veterans are waiting for.
    Ms. Ramirez. Thank you for that.
    Chairman, I yield back.
    Mr. Luttrell. Thank you, ma'am.
    Mr. McGarvey, sir, you are recognized for 5 minutes.
    Mr. McGarvey. Thank you, Mr. Chairman. Thank you all very 
much for being here.
    I wanted to start off by highlighting a quote from your 
testimony, Mr. Massey. You wrote that, ``AFGE members and Board 
attorneys are not afraid of the hard work necessary to satisfy 
the mission of serving veterans.'' Thank you. Thank you for 
that.
    We know what an incredibly valuable resource we have, both 
in our veterans and in the people who are working to serve them 
and get them the care they need. What you see from this 
committee, if you sense any frustration at all, it is that we 
want to make sure they get the care they need.
    I was going to ask a little bit about the training that Ms. 
Ramirez discussed, and so since she kind of got a good answer 
from you guys on that, I want to shift a little bit more to 
what you were just talking about and follow up on her last 
questions.
    Mr. Massey, you mentioned a legislative fix earlier that 
you would like us to look at. Now we are hearing there are 
72,000 claims pending, 11,000 fewer claims adjudicated Fiscal 
Year 2023 than in Fiscal Year 2022. What can we do, Mr. Massey? 
How can we help you guys? If you could snap your fingers and 
ask for something from us, what can we do to help our veterans 
get these claims adjudicated, get the care they need, they have 
earned, they deserve?
    Mr. Massey. That is a tough question to answer. The comment 
was made if this is more complicated than the tax code, we got 
some serious problems, I mean, the whole system needs to be 
redesigned. For purposes of this hearing, I think the Board of 
Veterans' Appeals, I think it needs to focus on training.
    I think they need to--I mean, when they downgraded the 
position from the GS-14 to the 13, it did not impact any of our 
members. This was new people being hired, but everybody was 
upset. I was wondering why from a union advocate standpoint. It 
was kind of a message to them that they are not valued, and it 
does not seem like they are being valued. You cannot have any 
kind of customer service.
    The first thing, if you treat the employees well, they are 
going to treat their customers well, their clients. The Board 
attorneys, they do a phenomenal job, but they need more time to 
do the job. They need a quota that is lower.
    By the way, this whole tension between quality and 
quantity, it is been going on since I started 25 years ago. 
This is not new. It is a very difficult job. I do not envy the 
managers in charge of the Board of Veterans' Appeals. It is 
very tough.
    I think compensation, definitely, if you create 100-to 200 
GS-15 positions for people that want to stay--I know a guy, he 
does not mind me using his name, Thomas Douglas left. He was 
one of the Board's most valuable attorneys as far as quality 
and productivity. He left after 26 years. He did not stay his 
30 years. I asked him why. He said, I am never going to be a 
veterans law judge, and look at all these people. I am going to 
go train somebody? You know, we need to take a look at how we 
are running the Board of Veterans Appeals.
    We did a survey; I think you guys got it. Ten staffers came 
to the Board about 2 months ago. In June, I asked a question in 
a survey, what would you tell a member of the House Committee 
on Veterans' Affairs about the Board of Veterans' Appeals? Not 
knowing we were going to have this hearing. I gave that to the 
staffers. There is a common theme if you read that, and I 
encourage everybody to read or to have your staffers read it. 
It is all about productivity. They do not care about us. They 
do not care about the quality of what we are doing. That was 
the common theme.
    Some positive notes with the surveys we have done, they do 
like their immediate supervisors, the veterans law judges. They 
like their senior counsel, the supervisors. Their direct 
supervisors they view very favorably. There seems to be a 
disconnect between upper management and what everybody is 
doing.
    Mr. McGarvey. You hit on this briefly. We do have an 
incredible workforce, an amazing workforce. People coming in 
day-in, day-out, working really hard to ensure that our vets 
get the decisions they deserve. We want to make sure you guys 
have the tools and the support you all need as well.
    Throughout your testimony, you did highlight several ways 
the VA could improve recruitment and retention, including 
metric reforms, promotion opportunities, training, compensation 
that you just hit on. I just want to elevate those ideas, and I 
do hope that BVA leadership and this committee can take action 
on some of these items.
    Just, you know, appreciate the work you all do. I do know 
that there are big positives and highlights of working at the 
BVA, and we are here to support. Thank you.
    Mr. Luttrell. Thank you. Thank you, sir.
    Thank you all to our witnesses for testifying before us 
today about the important issues of ensuring that veterans 
receive high quality decisions on their appeals.
    With that, I will yield to the ranking member for his 
closing remarks.
    Mr. Pappas. Well, thank you very much to everyone on our 
second panel for your discussion here today and what you all do 
and represent. I did hear during the first panel that there is 
going to be an AMA Summit coming up in early 2024, and I do 
hope that your organizations will somehow be involved in that 
and that an invitation is coming your way. We will see. Thank 
you to everyone who participated in today's event.
    This is, obviously, a very crucial conversation about the 
Board of Veterans' Appeals, and it is evident that BVA has got 
some work to do to address these issues with the appeals 
process, including retention and hiring concerns, training 
deficiencies, lapses in quality assurance, and the impact of 
increased workloads on morale.
    Let us not forget that behind every claim is a veteran. 
Behind every claim decision is an employee tasked with writing 
it. As such, a singular focus on increasing productivity will 
only lead to greater employee burnout, attrition, and 
ultimately worse outcomes for the veterans that we all want to 
serve better.
    I know that with the implementation of PACT, VA is 
delivering more benefits to more veterans than ever before. The 
Board must continue to focus on workforce development and 
quality assurance as we find ways to decrease the appeals 
backlog.
    Further, the Board should continue to aggressively hire new 
employees to balance out the workload. I would say also that 
VBA must continue to address, at the same time, the upstream 
issues with claim accuracy that lead to additional downstream 
work by the Board.
    Ensuring veterans receive a decision on their appeals 
promptly, along with an accurate and comprehensive decision, 
remains a top priority. It is imperative that these individuals 
obtain the benefits rightly due to them, and we should all be 
committed to nothing less and I know that we are.
    I anticipate a continued collaboration, Mr. Chairman, with 
you, with our VSOs, with all those who have been a part of this 
hearing today. I yield back and thank everyone for a productive 
session.
    Mr. Luttrell. Thank you, Mr. Pappas.
    Mr. Massey, my colleague, Mr. McGarvey, asked one of the 
most profound questions, and your response was, that is an 
extremely difficult question, but those are the answers that we 
need. We need to know exactly the answers to those hard 
questions so we can take that information directly to the VA 
and make movement on it.
    You heard me say earlier, having these hearings where we 
are engaging back and forth, but we have no profound this is 
the way forward. This is from step off to mission success is 
what we need to implement. We have to refine that in a way 
where it is just not Sunday lunch and you are emptying the 
refrigerator. Okay? I do not have any other better way to put 
it.
    Again, thank you so much for coming today.
    I ask unanimous consent that all members have 5 legislative 
days to revise and extend their remarks and include extraneous 
material. Without objections, so ordered.
    This hearing is adjourned.
    [Whereupon, at 12:53 p.m., the subcommittee was adjourned.]

    
=======================================================================


                         A  P  P  E  N  D  I  X

=======================================================================


                    Prepared Statements of Witnesses

                              ----------                              


                  Prepared Statement of Kenneth Arnold

    Good afternoon, Chairman Luttrell, Ranking Member Pappas and 
Members of the Subcommittee. I appreciate the invitation to appear 
before you today on behalf of the Department of Veterans Affairs (VA) 
to discuss how VA strives to achieve final resolution of Veteran 
appeals regarding claims and eligibility for service-connected 
disability compensation ratings and benefits, VA health care access or 
services and VA cemetery or burial benefits. Accompanying me today is 
Timothy Sirhal, Executive Director, Office of Administrative Review, 
Veterans Benefits Administration (VBA) and Mary Flynn from the Office 
of General Counsel (OGC).
    We have made incredible strides within VA to execute the Veterans 
Appeals Improvement and Modernization Act of 2017 (AMA), which was 
implemented on February 19, 2019. Increased choice for Veterans and 
setting reasonable time constraints on adding additional evidence under 
each choice during the appeals process under AMA has led to much faster 
resolution of appeals, with higher grant rates and significantly lower 
remand rates between the Board and VBA.
    Providing Veterans with the opportunity to ``appeal first'' to VBA 
after an initial denial of claims under AMA has been a game-changer, 
resulting in ever-increasing numbers of Veterans choosing that option 
each year to have their denials turned into grants without the need to 
seek an appeal from the Board of Veterans' Appeals (Board). Under the 
AMA, Veterans can choose to have initial claims decisions reviewed 
within VBA by a more experienced claims adjudicator through the higher-
level review process (i.e., a review of the same evidence presented to 
the prior decision-maker) or Veterans can file a supplemental claim 
with VBA if there is new and relevant evidence to support the claim. 
These new choices available to Veterans to ``appeal first'' to VBA has 
reduced the number of appeals to the Board. In fiscal year (FY) 2021, 
only 17 percent of Veterans who received an initial ``no'' from VBA 
under AMA chose to challenge the decision by appealing to the Board. In 
FY 2023, merely 2 years later, that rate dropped to single digits--just 
below 10 percent.
    Even though we know we still have a long way to go to achieve the 
full impact of those historic changes in law, and improvements can be 
made, I am pleased to report to you that the most notable improvement 
in AMA appeals processing is the significant reduction in the time it 
takes to fully resolve Veteran appeals, both at VBA and at the Board. 
Since implementation of the AMA, VBA has consistently met its 
timeliness (125-day average days to complete) and quality (93 percent) 
goals under the AMA decision review program. In FY 2023, under the AMA 
system, VBA completed over 429,000 supplemental claims in an average of 
122 days and decided over 140,000 higher-level reviews in an average of 
77 days.
    Last year, the Board decided over 30,000 AMA appeals. On average, 
AMA appeals at the Board are fully resolved (meaning no remaining 
remands) approximately 4 years faster than it takes to fully resolve 
Legacy system appeals, i.e., those appeals remaining in the appellate 
system that the AMA replaced. At the same time, those faster AMA 
decisions reflect 20 percent fewer remanded cases and 10 percent higher 
grant rates when compared to the Legacy system remand and grant rates. 
These are consistent trends over the past 4 years. In FY 2023 alone, 
VBA implemented over 10,000 full grants of benefits awarded by the 
Board...averaging less than 30 days to process those granted benefits. 
In short, Veterans are using the different options available to them 
under the AMA and this increased Veteran choice is also enabling 
Veterans to get full and final answers from VA much faster than under 
the Legacy system of appeals.
    Honestly, the older Legacy system of appeals has been holding us 
back from achieving even greater success under AMA. Veterans Service 
Organizations (VSO) and other accredited representatives have expressed 
frustration on behalf of the Veterans they represent, noting that the 
promises of faster resolution under AMA is not happening with so many 
Legacy system appeals still pending. When Congress passed AMA in 2017, 
a widely held assumption was VA could successfully operate both systems 
at the same time, even though the House Report noted it would take an 
average of 10 years for a final appeals decision under the Legacy 
system. It was expected that the older Legacy appeals system cases 
would decrease to the point that the system would effectively sunset 
and almost all appeals would be processed more swiftly and effectively 
under the newer AMA system.
    VA still has nearly 60,000 pending Legacy system appeal cases, and 
over 20 percent of those Legacy system appeals have not had an initial 
review or adjudication by a Board judge because so many remanded cases 
keep returning to the head of the line, essentially cutting in front of 
those Veterans. While we have made great strides reducing the pending 
Legacy system appeals from nearly 475,000 pending cases in 2017 to the 
current 60,000 pending cases, we are seeing a very high percentage of 
these remaining appeals being remanded over and over. When we look at 
those pending Legacy system appeals in the Board inventory on any given 
month, we have seen half of them previously, as VBA is recertifying 
Legacy remands back to the Board upon completing the directed case 
development. In fact, 15 percent of the Board's pending Legacy appeals 
are being adjudicated for the 5th time or more. The root cause is what 
Congress previously found in 2017 - the Legacy system allowed for and 
incentivized ``repeated revisions'' to add new evidence in the claims 
file during the appeals process that necessitated successive remands.
    Reports accompanying the 2017 AMA legislation estimated the average 
time to fully resolve Legacy system appeals though both VBA and the 
Board to be 5 years, not counting additional time for Court-appeal 
cases. Legacy system appeals are now taking approximately 6 years for 
final resolution by the Board, and that does not count the time the 
case was at VBA or the fact that over 60 percent of Legacy system 
adjudications by the Board continue to be remanded. It also does not 
account for the extra time to re-adjudicate the 6,800-7,700 appeals 
remanded by the Court every year. Projections show that by the end of 
FY 2025, the remaining Legacy appeals inventory will be approximately 
10,000 cases in the Department overall, split evenly between the Board 
and VBA.
    As noted earlier, the rate of cases remanded from the Board has 
been substantially lower under the new AMA appeals system compared to 
the Legacy appeals system. To build on this progress, partnership 
between VBA and the Board offers an opportunity to enhance the quality 
and effectiveness of VBA training programs for the dedicated VBA claims 
processors who serve the Nation's Veterans. Ultimately, VBA seeks to 
ensure that Veterans and claimants receive the benefits they have 
earned at the earliest point possible during the claims process and to 
minimize avoidable delays--while also guarding against the 
overdevelopment of cases. Remand data from the Board are used to both 
validate VBA's current areas of training focus and potentially present 
new opportunities to refine training as data analytics capabilities in 
this area evolve.
    While full resolution of the vast majority of the 30,000 AMA 
appeals decided by the Board last year took an average of less than 2 
years, that is still too long for Veterans to wait. A major cause is 
the fact that the Legacy system cases consistently move to the head of 
the line because they have been waiting longer, and the number of those 
cases pending is far higher than anyone anticipated when AMA was 
passed. Those remaining Legacy system appeals are being repeatedly 
remanded without a final resolution and closure for Veterans because 
the underlying system still suffers the same flaws that led to passage 
of the AMA over 6years ago. We must do better. The Courts, VSOs, 
private attorneys and other accredited representatives, VBA, the Office 
of General Counsel and the Board must come together, again, to solve 
this challenge together through a holistic review of the Veteran's 
disability system.
    To know there are still over 200,000 pending appeals, with most 
filed under the newer AMA system that promised faster resolutions, this 
is difficult to accept as a Veteran myself. We have been making 
aggressive changes to address that challenge, while increasing our 
staffing so as to not burn out those we rely on to serve Veterans at 
the Board.
    First, thanks to continued support from Congress, we added 
additional budgetary resources that allowed us to hire and retain more 
talent. The Board hired 50 new Veterans Law Judges (VLJ) during the 
past 2 years. This is the largest and most diverse increase in judges 
in the Board's 90-year history. However, because the VLJs can only be 
as productive as the attorneys who prepare draft decisions, the Board 
focused on attorney hiring last year, which resulted in a 16 percent 
increase in FY 2023, with the addition of over 200 new attorneys and 
law clerks. The Board is currently prioritizing two rounds of attorney 
hiring during FY 2024 (fall 2023 and Spring 2024) to fully staff the 
current VLJ teams and maximize the number of decisions that can be 
issued. Board culture for how we operate also has changed, and we are 
retaining talent as a result. Attorney attrition is down from 13.9 
percent in FY 2018 to 7.4 percent in FY 2023.
    Second, the Board is adjudicating exponentially more AMA appeals, 
even though older Legacy system appeals continued to dominate the 
Board's docket in recent years since the passage of AMA. The 
distribution of appeals cases in October 2022 at the start of FY 2023 
was 25 percent AMA to 75 percent Legacy. By the end of the FY, 42 
percent of our decision output was under the AMA. This year, we 
anticipate more than 50 percent of all output will be under the AMA 
rather than the Legacy system.
    There are bright spots and cause for hope that AMA will live up to 
original expectations of faster and full resolution for awaiting 
Veterans. They deserve final answers, to include rational explanations 
for any claim or appeal that cannot be granted for some reason. This 
past year, the Board set a 90-year record, adjudicating 103,245 
appeals. For the first time in 4 years, we ended the FY with a shorter 
line of pending appeals than where we started at the beginning of the 
fiscal year. The number of pending hearings at the end of FY 2023 was 
72,465, and this is the second year in a row the Board has reduced the 
hearing inventory. The number of pending Legacy hearings was reduced by 
over 85 percent, down to just 1,054 remaining at the end of FY 2023.
    The increased partnership in sharing remand information is a 
testament to the joint commitment of both VBA and the Board to 
continuously improve the services and support we provide to Veterans. 
VBA acknowledges that there are opportunities to improve data 
collection in this area and is collaborating with the Board to obtain 
more granular information that will better inform training needs and 
opportunities. Specifically, remand data from the Board validate VBA's 
significant investment in training around medical exam requests and 
medical opinions, and its robust catalogue of courses for claims 
processors. Following passage of the Sergeant First Class Heath 
Robinson Honoring our Promise to Address Comprehensive Toxics Act of 
2022, VBA created additional courses that include information specific 
to exams and medical opinions related to that legislation.
    In addition, VBA and the Board collaboratively exchange information 
through an agreed upon Board Feedback Loop process, identifying trends 
for AMA and Legacy Board remands. This feedback system was established 
to 1) ensure VBA is appropriately addressing remands issued by VLJs and 
2) confirm that Board remand return reasons under the AMA system relate 
only to duty to assist errors that occurred prior to an initial 
decision on a claim, as prescribed by the AMA.
    Further, VBA is actively exploring innovative training delivery 
methods. VBA is considering options such as microlessons, videos and 
other modernized training techniques to ensure that claims processors 
are well-equipped to address the challenges presented by cases that 
often involve complex legal and medical questions.
    In FY 2023, VBA made over 36,000 Legacy appeals decisions and 
implemented over 12,500 Legacy full grants of benefits received from 
the Board. Further, VBA remains on pace to have fewer than 5,000 
remaining Legacy appeals by the end of FY 2025. Sunsetting the Legacy 
appeals system will allow VBA to focus additional resources on 
improving the AMA decision review process.
    Our mission success is ultimately defined by what Veterans 
experience during the lifecycle of their cases on appeal, from the 
initial filing all the way until they receive a final written decision 
from a Board VLJ. Since 1933, the Board has been charged to apply the 
``benefit of the doubt'' and ``duty to assist'' doctrines that are now 
enshrined by Congress in statute. In large part, it is those two 
factors that enable the Board to say ``yes'' and grant at least some 
relief in roughly a third of its decisions even after VA has previously 
said ``no,'' sometimes on multiple occasions. Survey results show that 
Veterans leave the Board with higher trust levels than they had when 
they first filed their appeals--10-11 percent higher. Data show a 
significant percentage of Veterans report ``trust'' even after getting 
no relief from the Board. Over 50 percent of Veterans report they trust 
the Board after getting their final decisions, which is remarkable when 
the Board is only able to grant relief on about 25 percent of the 
issues appealed to the Board.
    The new AMA system that was designed and developed through the full 
partnership between VA, the VSOs, private bar representatives and 
Congressional staff is proving that comprehensive, Veteran-centric 
solutions are possible when people with different perspectives work 
together toward a common goal. We should maintain focus on our shared 
goal to reduce the overall time Veterans spend patiently waiting for 
final VA resolution of their claims and appeals. That is why VA is 
planning to host an AMA Summit with all stakeholders in early 2024.
    VA understands that the claims appeals process can be long and 
frustrating for many Veterans, but I hope that our answers to your 
questions today will help explain why it takes so long to process your 
appeal and efforts VA has taken to improve the process. We must 
recognize that processing these appeals will take time because each and 
every case represents a Veteran with a unique set of facts and 
circumstances that must be carefully evaluated and appropriately 
resolved according to governing laws and regulations.

Conclusion

    VA shares Congress' goal of continuous improvements to both our 
program and our customer service to Veterans, their families, 
caregivers and survivors. We want to express our appreciation for your 
continued support and look forward to continued collaboration. Chairman 
Luttrell and Ranking Member Pappas, this concludes my testimony. My 
colleagues and I are happy to respond to any questions you or the 
Subcommittee may have.
                                 ______
                                 

                 Prepared Statement of Elizabeth Curda
[GRAPHIC] [TIFF OMITTED] T4514.001

[GRAPHIC] [TIFF OMITTED] T4514.002

[GRAPHIC] [TIFF OMITTED] T4514.003

[GRAPHIC] [TIFF OMITTED] T4514.004

[GRAPHIC] [TIFF OMITTED] T4514.005

[GRAPHIC] [TIFF OMITTED] T4514.006

[GRAPHIC] [TIFF OMITTED] T4514.007

[GRAPHIC] [TIFF OMITTED] T4514.008

[GRAPHIC] [TIFF OMITTED] T4514.009

[GRAPHIC] [TIFF OMITTED] T4514.010

[GRAPHIC] [TIFF OMITTED] T4514.011

[GRAPHIC] [TIFF OMITTED] T4514.012

[GRAPHIC] [TIFF OMITTED] T4514.013

[GRAPHIC] [TIFF OMITTED] T4514.014

[GRAPHIC] [TIFF OMITTED] T4514.015

[GRAPHIC] [TIFF OMITTED] T4514.016

[GRAPHIC] [TIFF OMITTED] T4514.017

[GRAPHIC] [TIFF OMITTED] T4514.018

[GRAPHIC] [TIFF OMITTED] T4514.019

[GRAPHIC] [TIFF OMITTED] T4514.020

[GRAPHIC] [TIFF OMITTED] T4514.021

[GRAPHIC] [TIFF OMITTED] T4514.022

[GRAPHIC] [TIFF OMITTED] T4514.023

[GRAPHIC] [TIFF OMITTED] T4514.024

[GRAPHIC] [TIFF OMITTED] T4514.025

[GRAPHIC] [TIFF OMITTED] T4514.026

[GRAPHIC] [TIFF OMITTED] T4514.027

[GRAPHIC] [TIFF OMITTED] T4514.028

[GRAPHIC] [TIFF OMITTED] T4514.029

[GRAPHIC] [TIFF OMITTED] T4514.030

[GRAPHIC] [TIFF OMITTED] T4514.031

[GRAPHIC] [TIFF OMITTED] T4514.032

                  Prepared Statement of Shane Liermann

    Chairman Luttrell, Ranking Member Pappas and Members of the 
Subcommittee:
    Thank you for inviting DAV (Disabled American Veterans) to testify 
at today's oversight hearing titled, ``Examining the VA Appeals 
Process: Ensuring High Quality Decision-Making for Veterans' Claims on 
Appeal.''
    DAV is a congressionally chartered, VA-accredited, non-profit 
veterans service organization (VSO) comprised of more than one million 
wartime service-disabled veterans that is dedicated to a single 
purpose: empowering veterans to lead high-quality lives with respect 
and dignity. To fulfill our service mission, DAV directly employs a 
corps of benefits advisors, national service officers (NSOs), all of 
whom are themselves wartime service-connected disabled veterans, at 
every Department of Veterans Affairs (VA) regional office (VARO) as 
well as other VA facilities throughout the Nation, including the Board 
of Veterans' Appeals (Board).
    More than 12.1 million claims for benefits have been submitted by 
DAV since the organization was chartered by Congress in 1932. In VA 
Fiscal Year (FY) 2022, DAV represented veterans and families in more 
than 13,500 decided appeals by the Board, which represented nearly 20 
percent of all Board decisions, the largest amount of any accredited 
VSO.
    Based on our experience, our testimony will focus on the quality of 
appeals decisions by examining the Board and its remand decisions, the 
performance of the Board in FY 2022, the Court of Appeals for Veterans 
Claims (Court) and its FY 2022 report, and our concerns and 
recommendations.

                     THE BOARD OF VETERANS' APPEALS

    Established in 1933, the Board is an agency within the VA, which is 
responsible for making final decisions on behalf of the Secretary 
regarding appeals for veterans' benefits and services from all three 
administrations, the Veterans Benefits Administration (VBA), the 
Veterans Health Administration (VHA), and the National Cemetery 
Administration (NCA), as well as the Office of General Counsel (OGC) 
that are presented to the Board for appellate review.
    The Board consists of a Chairman, Vice Chairman, Deputy Vice 
Chairman, members, and professional, administrative, clerical 
personnel. The principle functions of the Board of Veterans' Appeals 
are:

      Make determinations of appellate jurisdiction.

      Consider all applications of appeal properly before it.

      Conduct hearings on appeal.

      Evaluate the evidence of record.

      Enter decisions in writing on the questions presented on 
appeal.

    All questions of law and fact necessary to a decision under a law 
that affects the provision of benefits to veterans or their dependents 
or survivors are subject to review on appeal by the Board. 
Additionally, the Board shall decide all questions pertaining to its 
jurisdictional authority to review a particular case.

The Appeals Improvement and Modernization Act

    Starting in 2015, DAV collaborated with the VBA, the Board, and 
other stakeholders to improve and streamline the appeals process. The 
Appeals Improvement and Modernization Act (AMA), a veteran-centric 
appeals process, was the result of those combined efforts and was 
implemented in February 2019.
    In the legacy appeals process, appeals could languish for several 
years within each VARO before being certified to the Board and then, 
potentially spend several more years there before a final decision.
    AMA created three options, referred to as lanes, for claimants 
dissatisfied with the initial decisions on their claim. Claimants may 
seek a higher-level review of the decision based on the same evidence 
presented to the initial claims processors; file a supplemental claim 
that includes the opportunity to submit additional evidence; or appeal 
directly to the Board.
    Claimants appealing to the Board may elect one of three appeal 
options: 1) a direct review of the evidence that the Agency of Original 
Jurisdiction (AOJ) considered; 2) an opportunity to submit additional 
evidence without a hearing; or 3) a hearing before a veterans' law 
judge (VLJ), which includes the opportunity to submit additional 
evidence.
    The Board noted in its final FY 2023 quarterly report, published on 
its website, that 103,245 appeals were decided while receiving over 
101,000 new appeals. There were 24,145 legacy appeals pending and over 
180,000 pending AMA cases totaling 208,155 appeals pending on October 
1, 2023. Of the appeals pending, it noted that AMA appeals on a direct 
route were pending an average of 577 days, AMA appeals with evidence 
were pending an average of 682 days and AMA appeals requesting a 
hearing were pending an average of 700 days.
    Additionally, in FY 2023, the Board conducted 19,434 hearings, 
which is approximately 11,000 less than those held in FY 2022. At the 
end of the FY 2023, there were 1,054 legacy hearings and 71,411 AMA 
hearings pending for a total of 72,465 appeals awaiting hearings.

Legacy Remand Decisions

    In the legacy appeals system, when a veteran files a VA Form 9 in 
response to a Statement of the Case issued by the VARO, their claim 
will go to the Board to be reviewed by a VLJ. The Board will then look 
through the veteran's file, consider all of the evidence submitted, and 
issue a decision. There are several situations in which the Board will 
decide to remand a claim, including:

      If the Board believes it needs additional information or 
evidence in order to come to a final determination;

      If the Board does not believe that the VARO evaluated the 
veteran's claim appropriately; and

      If additional evidence was submitted that the VARO did 
not review.

    Importantly, in the legacy appeals system, the Board is obligated 
to remand for duty to assist errors that occurred at any time while the 
veteran's appeal was pending. If a veteran's case is remanded, the file 
will go back to the VARO, the agency of original jurisdiction (AOJ). In 
each remand, the Board will lay out specific remand instructions to 
which the VARO must adhere. For example, the Board can instruct the 
VARO to obtain a compensation and pension examination, medical records, 
service records, or other types of additional evidence. Once the VARO 
completes the Board's remand instructions, it will issue a decision on 
the veteran's claim. It can either issue a rating decision if it 
determines the veteran is entitled to the benefits sought on appeal, or 
a Supplemental Statement of the Case (SSOC), if it is unable to grant 
benefits. The issuance of an SSOC will automatically send the veteran's 
claim back to the Board so a final decision can be made.
    In FY 2020 and FY 2021, the legacy remand rate was 40 percent. In 
FY 2022, the legacy remand rate was 42 percent and the Board stated in 
the report, that nearly 60 percent of the returned legacy remands 
pending at the Board have been remanded by the Board to the agency of 
original jurisdiction two or more times. In the last FY 2023 quarterly 
report, the legacy remand rate was 44 percent, which is an increase 
over the past three years.

AMA Remand Decisions

    Under AMA, the Board is no longer obligated to remand for duty to 
assist errors. However, if the duty to assist error is pre-decisional, 
meaning it occurred prior to the VARO adjudication on appeal, the Board 
can remand the appeal back to the VARO with instructions to correct the 
error. For example, the Board may request the VARO to obtain an 
advisory medical opinion if it should have done so prior to the initial 
decision.
    Additionally, under AMA, remanded appeals are not automatically 
returned to the Board following development and correction. Instead, 
the AOJ will readjudicate the appeal by re-reviewing the record, 
conducting the development necessary to correct the pre-decisional duty 
to assist error, and issue a new rating decision. A veteran's appeal 
will only return to the Board if the claimant files another Notice of 
Disagreement within one year of the VARO's readjudication.
    If there is no pre-decisional duty to assist error, the Board is 
instructed to grant or deny the appeal for benefits based on the 
evidence considered by the VARO, and any evidence submitted during or 
within 90 days after the NOD or Board hearing.
    In FY 2020 and FY 2021 the AMA remand rate was essentially 28 
percent. In FY 2022, the AMA remand rate was 29 percent. In the FY 2023 
last quarterly report, the AMA remand rate increased to 32 percent.

                      CONCERNS AND RECOMMENDATIONS

    We are greatly concerned about the increased rates of legacy remand 
rates. In the last FY 2023 quarterly report, 70,584 legacy appeals were 
decided in FY 2023, with a grant rate of 34 percent, a remand rate of 
44 percent and a denial rate of 17 percent. Appellants have the ability 
to submit new evidence throughout a legacy appeal. While we acknowledge 
this could be a factor for the increase in the remand rate, we ask why 
only 17 percent of the legacy appeals were denied. There is clearly 
some issue regarding the quality of the these AOJ decisions, which we 
believe can be traced to training issues.
    When the Board previously conducted hearings at the VAROs, often 
called travel board hearings, many of the VLJs traveling to the VAROs 
would conduct training with the local appeals teams. While these were 
conducted with the permission of the VARO Director and if the VLJs had 
time, DAV even participated in these training sessions. It is evident 
by the 17 percent denial rate at the Board, that training is 
desperately needed in VBA and at the VARO level.
    One of the original intents of AMA was to reduce the amount of 
remands by the Board of Veterans' Appeals; however, the increased rate 
of AMA remands establishes that VBA claims personnel are committing a 
high volume of duty to assist errors pre-decision. We believe this high 
percentage of errors is, in part, due to training issues.
    We believe these high duty to assist errors are verified by the 
June 2021 Government Accountability Office (GAO) report, ``Veterans 
Benefits Administration Could Enhance Management of Claims Processor 
Training,'' which made ten recommendations for VBA to implement. 
Additionally, the report noted, ``fully applying leading practices for 
training would provide VBA greater assurance that its workforce is 
sufficiently skilled to efficiently and effectively process disability 
claims and provide high-quality service to veterans.'' The report 
clearly identifies training issues within VBA.
    Additionally, we believe VBA places an overemphasis on their own 
training manuals, adjudication manuals and training memos which are not 
binding on the Board. As noted in title 38, Code of Federal 
Regulations, section 20.105, ``In the consideration of appeals and in 
its decisions, the Board is bound by applicable statutes, regulations 
of the Department of Veterans Affairs, and precedent opinions of the 
General Counsel of the Department of Veterans Affairs. The Board is not 
bound by Department manuals, circulars, or similar administrative 
issues.''
    Further, in December 2020, the Court held in Kennedy v Wilkie that 
a VA Fast Letter does not constitute ``law.'' It is clear that VBA 
focuses training of their claims processors to their own manuals and 
not specific to statutes, regulations and precedent decisions.
    In the FY 2022 report, the Board states, ``While the overwhelming 
majority of remands from the Court have instructions for the Board to 
provide additional ``reasons and bases'' for its denial decision, the 
Board and VBA are assembling a tiger team to evaluate root causes and 
ways to reduce remands from the Board to VBA. While doing this, the 
Board is exploring options to enable it to better address original 
Legacy system appeals still pending that have never been seen by a 
Board judge because of these remands that continue to have priority.''
    We recommend that the Board institute this tiger team not only to 
determine the root cause of remands, which we believe is partly 
development errors, but also to provide training on these specific 
issues. Additionally, the training needs to impress upon VBA it needs 
to focus training on the law, not internal manuals.
    The Board's legacy and AMA remand decisions both increased during 
FY 2022 and FY 2023, which speaks directly to the quality of the 
decisions being made by AOJs and inversely speaks to the quality of 
decisions made by the Board.

                       QUALITY OF BOARD DECISIONS

    In order to effectively discuss the quality of Board decisions, we 
must take a look at several factors, including the intake and docketing 
of AMA appeals, the GAO testimony of July 13, 2021, the Board's FY 2022 
annual report, as well as the Court and its FY 2022 annual report.

Intake and Docketing of AMA Appeals

    In January 2020, the Board established the Office of the Clerk of 
the Board, an internal Board resource formed to ensure the proper 
docketing of AMA appeals. The Clerk's Office also works to identify and 
correct AMA docketing errors, improve Board training around AMA issues 
and assists VA IT professionals in refining the technological tools 
used by Board staff to process AMA appeals.
    Although the Clerk of the Board was created, DAV continues to 
discover AMA appeals that are deemed invalid and should not have been 
docketed. For example, veterans who have received a proposed reduction 
from VBA are filing an appeal, VAF 10182, directly to the Board. 
However, since this is a proposed action and not a final action, the 
issue is not under the Board's jurisdiction and thus is an invalid 
appeal. This invalid appeal may not be discovered for months or longer 
while the veteran is completely unaware. In many instances, this has 
negatively impacted veterans as they could not take other timely 
actions.
    In our July 2021 testimony to this Subcommittee, we reported that 
DAV's National Appeals Office located at the Board estimated that 1 in 
25 cases reviewed for an informal hearing presentation and 1 in 100 
cases reviewed for a hearing were invalid appeals that should not have 
been docketed.
    Then in 2021, the Board learned that a number of veterans may have 
had their Board Appeal forms mistakenly rejected for being untimely. 
The Board sent out notifications that VA Forms 10182 submitted to the 
Board between February 19, 2019, and March 23, 2021, may had been 
improperly rejected as untimely. Impacted veterans were invited to 
resubmit the Notice of Disagreement (NOD).
    In January 2022, the Board sent out another notice that delays to 
the Board's ability to mail correspondence between July 13, 2021, 
through December 31, 2021, may have impacted timely submissions and 
invited veterans to request that the Board consider a previous 
submission that was not addressed or reconsider a prior determination 
that a submission was untimely.

                       CONCERN AND RECOMMENDATION

    It is important to note that the decisions on the timeliness of the 
NOD is currently not a written decision made by a VLJ, but an intake 
clerk. This means the timeliness of the NOD determination by the Board 
is not appealable.
    Given the problems with the intake and docketing of AMA appeals, we 
recommend that a decision by a VLJ on the timeliness of the NOD be 
added to the appeals process. To accomplish this goal, DAV supports 
H.R. 5891, the Veteran Appeals Decision Clarity Act as it would require 
a written determination on the timeliness of the NOD.
    The problems identified with intaking and docketing cases, speaks 
to the quality of the decisions made by the Board and a need for 
improving the quality of decisions and a thorough quality assurance 
program.

GAO Testimony of July 31, 2021 before the Subcommittee

    The testimony specifically notes, ``Board officials recently told 
us that while they have conducted some analysis to ensure that 
decisions are accurate and consistent, they are developing a quality 
assurance program that measures and reports the accuracy of its 
decisions on AMA appeals. Developing this program, according to Board 
officials, involves efforts such as determining the appropriate 
criteria and statistical practices to assess decision quality, 
collecting baseline data, and specifying an AMA quality goal. Board 
officials told us they plan to set and use an AMA quality goal in 
Fiscal Year 2022.''
    Additionally, GAO noted, ``Developing and implementing a 
comprehensive quality assurance program is important as the Board 
contends with its large workloads, which potentially create pressure to 
sacrifice the quality of work activities to meet timeliness goals. This 
scenario could result in incorrect decisions, or rework to correct 
errors or issue new decisions, thus affecting timeliness from the 
veteran's perspective.''
    In the Board's most recent annual report, they refer to a Quality 
Assurance (QA) program, the Office of Assessment and Improvement (OAI) 
and the Board's independent review process. However, none of this is 
well-defined or explained in any great detail.

The Board of Veterans' Appeals Annual Report Fiscal Year 2022.

    The report states the Board adjudicated 95,294 decisions, which is 
4,000 fewer cases than adjudicated in FY 2021. Specific to the issue of 
quality, of the more than 3,400 cases sampled during FY 2022, 
statistical analysis revealed a quality assurance rate of approximately 
94.66 percent for legacy appeals decisions, which improved over FY 2021 
from 92.06 percent. For AMA appeals decisions, the quality assurance 
rate for FY 2022 was 91.91 percent compared to the FY 2021 quality 
assurance rate of 87.48 percent
    The Board noted in its FY 2022 report, ``The Board has been 
collaborating closely with GAO to evaluate areas for continued 
improvement in the Board's Quality Assurance program. This includes 
evaluating potential root causes for declining, but continuing, trends 
related to unnecessary or improper remands under the AMA. The Board is 
monitoring the outcomes in cases appealed to CAVC and the United States 
Court of Appeals for the Federal Circuit to identify trends that may 
help enhance the Board's Quality Assurance program. The Board will 
continue its collaboration with VA's OGC to provide targeted trainings 
to VLJs based on trends seen in these court cases.''
    We are encouraged by the increase in the quality assurance of the 
decisions for the legacy and AMA appeals and an improved quality 
assurance program. However, the Board is quick to point out that the 
mere discovery of an ``error'' in a decision does not mean that the 
Board's decision was ``wrong.''
    In FY 2022, of the total 261 errors called, only 4 errors were 
deemed clearly and unmistakably erroneous, where the decision 
erroneously states the facts or the law and, but for the error, the 
decision result would have been manifestly different. The report 
further states there are many other quality ``error'' categories that 
do not necessarily involve a procedural defect or incorrect outcome.
    Additionally, they report ``approximately 7.28 percent of errors 
identified in the Board's Quality Assurance process were based on a 
need for the Board to fully address all raised contentions and theories 
of entitlement. Again, please note that fully addressing each 
contention or theory of entitlement does not necessarily result in a 
different outcome.'' Through the lens of quality and accurate 
decisions, we view this as a very troubling statement from the Board. 
Their focus should be on the requirements of law, which requires it to 
consider all theories or avenues of entitlement, because in many cases 
that can result in a grant of the benefits being sought.
    The report also states that, ``OAI reviews Board decisions to 
ensure compliance with the duty to assist and evidentiary rules under 
the AMA, even if such an ``error'' is not adverse to the appellant.'' 
This is a stunning statement considering the Board has vastly increased 
remand decisions based on duty to assist errors as previously noted.
    The FY 2022 report does show improvement in the quality of the 
Board's decisions, yet the Board downplays the significance of certain 
errors that are discovered in its decisions, which fall under the 
jurisdiction of the Court of Veterans Appeals. Let's review the Court 
and its FY 2022 Annual Report.

The Court of Appeals for Veterans Claims

    Until the Court was established in 1988, veterans had no court of 
law where they might appeal the decisions on veterans' benefits. A 
veteran whose claim VA denied was therefore afforded no independent 
review of VA decisions; that veteran was therefore denied the right to 
go to court to challenge the decision of an administrative agency. 
Prior to the establishment of the Court, the last line of appeal for 
veterans and their families was the Board of Veterans' Appeals.
    In order to obtain review by the Court of a final decision of the 
Board of Veterans' Appeals, a person adversely affected by that action 
must file a notice of appeal with the Court. Any such notice must be 
filed within 120 days after the date of the decision.
    The Court has exclusive jurisdiction to review decisions of the 
Board and has the power to affirm, modify, or reverse a decision of the 
Board or to remand the matter, as appropriate. The Court must confine 
its review to the Board decision and may not consider any evidence 
which was not of record before the Board. In other words, an appeal to 
the Court cannot contain new evidence.

Court of Appeals for Veterans Claims FY 2022 Annual Report

    According to its annual report, in FY 2022, the Court received 
7,344 appeals along with 280 petitions and 6,530 Equal Access to 
Justice Act (EAJA) applications. During FY 2022, the Court issued 
15,136 decisions addressing 8,164 appeals, 260 petitions, and 6,534 
EAJA applications.
    The number of new cases filed at the Court in FY 2022 decreased by 
8 percent. This decrease correlates to a reduction of final decisions 
issued by the Board. The report states, ``In FY 2022, the Board 
decreased production of final decisions from 99,721 in FY 2021 to 
95,294. Over the course of FY 2022, the Court averaged 612 appeals 
filed per month, and reached a high of 717 appeals filed in March 
2022.''
    Out of the 8,164 decisions decided, the Court affirmed the Board's 
decision in 411 appeals, affirmed or dismissed in part, reversed or 
vacated and remanded in part 3,245 appeals, reversed or remanded 3,629 
appeals, and dismissed 879 appeals.

                      CONCERNS AND RECOMMENDATIONS

    Based on the GAO report of July 2021, the Board has implemented and 
improved its quality. It reported an increase in the quality of 
decisions for legacy appeals at 94.66 percent and AMA appeals at 91.91 
percent; however, the Court only affirmed the Board's decision in 5 
percent of appeals. This, coupled with the Court reversing or remanding 
44 percent of the Board's decisions, acknowledges an issue with the 
quality of decisions.
    The Board has indicated it needs to train VBA on remand issues and 
it is clear training from the Court is needed due to the large number 
of remanded cases. We recommend a renewed focus on quality by 
establishing a training program for VLJs. This should include feedback 
and input from attorneys and judges at the Court.
    For many veterans and appellants, while appeals are streamlined by 
the AMA it can still take years to get a decision from the Board and 
the Court. With the Court reversing or remanding 44 percent of the 
Board's decisions, this can lead to more years of waiting for a remand 
decision to be finally decided. The Board has shown improvement in 
quality; however, with the amount of remanded cases and the low 
percentage of affirmed cases, quality is still a major issue and 
concern for DAV.
    Mr. Chairman, this concludes my testimony on behalf of DAV. I am 
happy to answer any questions you or members of the Subcommittee may 
have.
                                 ______
                                 

                Prepared Statement of Diane Boyd Rauber

    Chairman Luttrell, Ranking Member Pappas, and members of the 
Subcommittee, the National Organization of Veterans' Advocates (NOVA) 
thanks you for the opportunity to testify today on the VA appeals 
process and the quality of actions taken by the Board of Veterans' 
Appeals (Board) for veterans, their families, survivors, and 
caregivers.
    NOVA is a not-for-profit 501(c)(6) educational membership 
organization incorporated in the District of Columbia in 1993. NOVA 
represents approximately 850 accredited attorneys, agents, and 
qualified members assisting tens of thousands of our nation's military 
veterans, families, survivors, and caregivers seeking to obtain their 
earned benefits from VA. NOVA works to develop and encourage high 
standards of service and representation for persons seeking VA 
benefits.
    NOVA members represent veterans before all levels of VA's 
disability claims process, and handle appeals before the U.S. Court of 
Appeals for Veterans Claims (CAVC), U.S. Court of Appeals for the 
Federal Circuit, and the Supreme Court of the United States. Accredited 
attorneys and agents handle a growing volume of appeals at the Board. 
In FY 2015, attorneys and agents represented 14.9 percent of appeals 
before the Board. By FY 2022, that percentage had grown to 25.7 
percent. Compare U.S. Department of Veterans Affairs, Board of 
Veterans' Appeals Annual Report Fiscal Year 2015 27, with U.S. 
Department of Veterans Affairs, Board of Veterans' Appeals Annual 
Report Fiscal Year 2022 49 (hereinafter Board FY 2022 Report).
    As an organization, NOVA advances important cases and files amicus 
briefs in others. See, e.g., Henderson v. Shinseki, 562 U.S. 428 (2011) 
(amicus); NOVA v. Secretary of Veterans Affairs, 710 F.3d 1328 (Fed. 
Cir. 2013) (addressing VA's failure to honor its commitment to stop 
applying an invalid rule); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 
2019) (amicus); NOVA v. Secretary of Veterans Affairs, 981 F.3d 1360 
(Fed. Cir. 2020) (M21-1 rule was interpretive rule of general 
applicability and agency action subject to judicial review); Van 
Dermark v. McDonough, No. 23-178 (September 25, 2023) (amicus in 
support of petition for writ of certiorari before U.S. Supreme Court). 
In 2000, the CAVC recognized NOVA's work on behalf of veterans with the 
Hart T. Mankin Distinguished Service Award.
    NOVA also advocates for laws to improve the VA disability claims 
and appeals process. NOVA participated in the stakeholder meetings that 
resulted in the development and passage of the Veterans Appeals 
Improvement and Modernization Act of 2017, Pub. L. 115-55, 131 Stat. 
1105 (August 23, 2017) (AMA). As VA has implemented the new system over 
the last several years, NOVA has provided extensive training to our 
members on the statute, regulations, and practice under the AMA. We 
also gather information from our members across the country on their 
experiences advocating in both the legacy and AMA systems.

                              Introduction

    Per the Subcommittee's invitation, we address below the quality of 
Board actions to include (1) Board determinations on whether a Notice 
of Disagreement (NOD) has initiated an appeal; (2) Board remands of 
cases to the Veterans Benefits Administration (VBA) for further action 
or development; (3) the Board's quality assurance and training program; 
and (4) additional issues that hinder timely, quality decisions and 
result in long wait times in the AMA system for veterans, family 
members, survivors, and caregivers.

  I.     Board Determinations on Whether an NOD Has Initiated an Appeal

    In its recent decision in Kernz v. McDonough, the CAVC found the 
veteran's appeal to be moot and therefore did not determine if the 
Board's letter finding his NOD to be untimely was a final decision the 
veteran could appeal. No. 20-2365 (October 4, 2023). We endorse Judge 
Jaquith's characterization of such letters in his dissent: ``A letter 
advising the veteran that his appeal was untimely and the Board would 
not consider it, without any mention of an opportunity to challenge 
that determination, screams final decision, not `prudent and 
informative notice' - especially when the letter comes from the Vice-
Chairman of the Board.'' Slip op. at 25 fn 136. Mr. Kernz has since 
appealed the CAVC's decision to the U.S. Court of Appeals for the 
Federal Circuit.
    In the interim, this Subcommittee introduced H.R. 5891, the 
Veterans Appeals Decision Clarity Act. This bill would require one 
element of the Board's decision to be ``a written determination of . . 
. whether the notice of disagreement was adequate and filed timely 
under section 7105 of this title.'' Such a requirement would provide a 
definitive legal finding made by a Veterans Law Judge in a decision 
that is unquestionably appealable. It is critical that this basic 
jurisdictional question be answered by the decisionmaker to ensure 
there is no confusion about the appellant's ability to challenge it. 
NOVA supports H.R. 5891. See National Organization of Veterans' 
Advocates, Inc., Statement for the Record Before the House Committee on 
Veterans' Affairs, Subcommittee on Disability Assistance and Memorial 
Affairs, Concerning Pending Legislation 4 (October 24, 2023).

  II.     Board remands of cases to the Veterans Benefits 
    Administration

    Board remands continue to be ordered at a high rate. Legacy remands 
in FY 2023 were close to 50 percent. While somewhat lower in the AMA, 
remands in the new system still hover at the rate of one-third. See 
Dispositions by issue, https://www.bva.va.gov/quarterly_reports.asp.
    High rates of legacy remands historically have been linked to a 
lack of nexus opinions, incomplete and inadequate findings, and lack of 
adequate examinations. See, e.g., Department of Veterans Affairs (VA) 
Appeals Data Requested by the House Committee on Veterans' Affairs 
Subcommittee on Disability Assistance and Memorial Affairs (January 
2015). Unfortunately, the data shared on the Board's website is not 
transparent as to the causes of ongoing high remand rates.
    NOVA members, however, continue to report extensive AMA remands for 
the same reasons as in the legacy system, as well as due to 
``overdevelopment,'' i.e., remanding when there is sufficient evidence 
of record that puts the appeal in relative equipoise. For example, one 
NOVA member recently represented a veteran with metastatic prostate 
cancer. The veteran opted into the Rapid Appeals Modernization Program 
(RAMP) in 2019. The record contained a negative opinion from a VA 
examiner and a positive opinion from a private oncologist, who had 
reviewed the veteran's service treatment records, genetic testing, and 
current diagnosis, as well as relevant medical literature and 
environmental impact studies. In 2020, the veteran filed a motion to 
advance on the docket (AOD) due to his age and terminal illness. Two 
years later, despite the evidence being in relative equipoise, the 
Board remanded the appeal for an addendum opinion from an ``appropriate 
clinician,'' who ultimately agreed with the private oncologist. Seven 
months later, this AOD veteran finally received a notification letter 
from the Regional Office that his claim was granted. Unnecessary 
remands such as these waste resources and time.
    In the FY 2022 annual report, the Board noted that it is 
``assembling a tiger team'' with VBA ``to evaluate root causes and ways 
to reduce remands from the Board to VBA.'' Board FY 2022 Report at 36-
37. Congress should seek a status update on the results of these 
efforts and those results should be transparent to the public.

  III.     Board's quality assurance and training programs

    Stakeholders generally have minimal insight into the quality 
assurance and training programs and procedures employed by the Board. 
In its most recent annual report, the Board described those programs. 
See Board FY 2022 Report at 33 (training); 15, 37 (quality assurance).
    Regarding quality assurance, the Board described the following 
ongoing efforts:

        The Board has been collaborating closely with GAO to evaluate 
        areas for continued improvement in the Board's Quality 
        Assurance program. This includes evaluating root causes for 
        declining, but continuing, trends related to unnecessary or 
        improper remands under the AMA. The Board is monitoring the 
        outcomes in cases appealed to CAVC and the United States Court 
        of Appeals for the Federal Circuit to identify trends that may 
        help enhance the Board's Quality Assurance program. The Board 
        will continue its collaboration with VA's OGC to provide 
        targeted trainings to VLJs based on trends seen in these court 
        cases.

    Board FY 2022 Report at 37 (emphasis added). Congress should seek a 
status update on the results of these efforts, particularly as related 
to remands, and those results should be transparent to the public.
    Below, we describe other issues that, if resolved, could serve to 
reduce the backlog and ultimately result in more timely decisions of 
higher quality.

  IV.     Additional Issues - Board of Veterans' Appeals

        A. Board decisions lag the level of resources provided in the 
        past several years, causing increased and unacceptable wait 
        times.

    NOVA has supported, and continues to support, funding levels 
necessary for the Board to implement the AMA and reduce wait times for 
veterans, family members, survivors, and caregivers. Congress 
appropriated $174,748,000 to the Board for FY 2019; by FY 2023, that 
amount grew 63 percent to $285,000,000. Compare Energy and Water, 
legislative branch, and Military Construction and Veterans Affairs 
Appropriations Act, 2019, Pub. L. No. 115-244, 132 Stat. 2897 (2018), 
with Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, 136 
Stat. 4953 (2022). By contrast, the Board issued 95,089 decisions in FY 
2019 and 103,245 in FY 2023, representing a much smaller increase at 
approximately 8.5 percent. We understand that not every dollar of 
increased appropriations can translate to an identical increase in 
decisions since funds are allocated for supporting functions as well. 
The Board, however, has only two functions: holding hearings and 
issuing decisions. Considering the tremendous resources provided by 
Congress, decisions should and must increase significantly in the years 
ahead as appellants continue to experience longer wait times in all 
three lanes, as well as in the legacy system. The Board stated that 
``the FY 2024 budget request notes the Board expects to decide at least 
115,000 decisions,'' an approximately 21 percent increase. Board FY 
2022 Report at 37. That is not enough.
    The impact of wait times on veterans, family members, survivors, 
and caregivers cannot be overstated. A review of ``average days 
pending'' (ADP), which is a more accurate assessment of wait times for 
most AMA appellants who are not entitled to expedited treatment, shows 
ever-increasing wait times in all AMA dockets. In the first quarter of 
FY 2023, the ADP was 440 days in the direct review docket, 575 days in 
the evidence docket, and 638 days in the hearing docket. By the fourth 
quarter of FY 2023, those times had increased to 577, 682, and 700 
respectively. See AMA average days pending, https://www.bva.va.gov/
quarterly_reports.asp.
    These wait times, particularly in the direct review docket, are 
unacceptable. In stakeholder discussions leading to the passage of the 
AMA, veterans relinquished an important benefit of the legacy system: 
the right to retain their docket date on remand. This right was 
conceded in reliance on a commitment from VA that Board decisions in 
the direct review lane would consistently be issued within 365 days. 
Nearly five years after AMA's implementation, that commitment has not 
been kept. According to NOVA members, many appellants now waiting to 
get a decision in the direct review docket were already waiting in the 
legacy system and opted into the AMA at VA's urging to get a faster 
decision. Now, those who receive a remand in the AMA and do not receive 
the requested relief or suffer another inadequate exam are forced to 
start the process all over again at the back of the line. This result 
is not the reform expected by veterans and their advocates or promised 
by VA.
    In 2017, the U.S. Government Accountability Office (GAO) warned 
Congress, VA, and stakeholders that VA was not adequately prepared to 
implement a new system while resolving legacy appeals. U.S. Government 
Accountability Office, VA Disability Benefits: Additional Planning 
Would Enhance Efforts to Improve the Timeliness of Appeals Decisions 
(GAO-17-234) (March 2017). Unfortunately, the goal of finishing legacy 
appeals has not been realized and continues to impact wait times in the 
AMA. In fact, there is still one open recommendation pending related to 
that report: ``As of August 2022, VBA and the Board are establishing a 
working group to develop approaches for comparing the new and legacy 
appeals processes, including by conducting surveys and listening groups 
with VA employees, veteran service organizations, and other advocates. 
However, VA plans do not fully articulate what aspects of the legacy 
and new processes it will evaluate through its efforts or how it will 
analyze and use the information it collects. We will consider closing 
this recommendation when VA identifies how it will use the information 
it is collecting to determine whether the new process is an 
improvement.'' Recommendations for Executive Action, https://
www.gao.gov/products/gao-17-234.
    A year later, GAO issued another report. U.S. Government 
Accountability Office, VA Disability Benefits: Improved Planning 
Practices Would Better Ensure Successful Appeals Reform (GAO-18-352) 
(March 2018). Two priority items remain open on that report. One states 
a need for the Board ``to develop a methodology, similar to VBA's plan, 
for how it will assess the new appeals process compared to the legacy 
process. Until the Board takes such action, it will lack information 
about how well the new process is performing relative to the legacy 
process and possible underperforming areas for improvement.'' 
Recommendations for Executive Action, https://www.gao.gov/products/gao-
18-352.
    While the Board notes repeatedly throughout its FY 2022 annual 
report that it has taken longer than expected to resolve legacy 
appeals, that is of little comfort to veterans, family members, 
survivors, and caregivers who have been waiting for years for 
resolution and have relied on the commitments made by VA. Congress must 
continue to oversee the implementation of the AMA at the Board and hold 
the Board accountable to the commitments made to veterans under the 
AMA. Until the Board's delays are sufficiently resolved (or at least 
fully understood), Congress should restore the claimant's right to the 
same docket number on remand if the Board's remand does not result in a 
full grant by the agency.

        B. The Board needs to promptly grant motions to withdraw 
        hearing requests.

    The Board takes issue with the large volume of hearing requests, 
yet NOVA members frequently report that motions to withdraw those 
requests far in advance of a scheduled hearing date are not timely 
ruled upon. Months may elapse and undesired hearings are still 
scheduled. Advocates do not wish to see Board resources wasted; 
hearings that are no longer desired for whatever reason should be 
removed as promptly as possible from the docket to ensure resources are 
not expended needlessly. The Board should institute a standard 
administrative process by which these motions are promptly granted and 
hearings removed from the docket.

        C. Congress should allow represented veterans to waive the duty 
        to assist.

    The AMA system was designed to allow for claimants to avail 
themselves of new options to develop the record before proceeding to 
the Board. NOVA members frequently use the higher-level review and 
supplemental claim lanes and view these options as important pathways 
to obtain benefits and avoid long waits at the Board. When a veteran 
who is represented takes a claim to the Board, there should be an 
opportunity for them to waive further development under the duty to 
assist. NOVA sees this option as a way to reduce unnecessary remands 
for tiebreaker examinations and other superfluous development, and make 
the ``up or down'' decision that was supposed to be the hallmark of a 
Board appeal under the AMA. Congress should consider legislation that 
would allow for represented veterans to waive this duty upon appeal to 
the Board.

          V.     Additional Issues - Veterans Benefits Administration

    Problems hindering issuance of timely, quality decisions are not 
solely due to challenges within the Board of Veterans' Appeals. 
Improvements within VBA are also necessary to ensure all veterans, 
family members, survivors, and caregivers receive timely, quality 
decisions so fewer claimants must seek relief at the Board and remands 
are reduced.

          A. Ongoing problems with VA examinations hinder quality, 
        timely decisions.

    NOVA has long detailed deficiencies in the disability examination 
process, which result in poor quality of exams, inferior service to 
veterans, and ongoing delays across the entire VA disability 
adjudication system. See, e.g., National Organization of Veterans' 
Advocates, Statement for the Record Before the House Committee on 
Veterans' Affairs Subcommittee on Disability Assistance and Memorial 
Affairs Concerning ``VA Disability Exams: Are Veterans Receiving 
Quality Services?'' (July 27, 2023); National Organization of Veterans' 
Advocates, Statement for the Record Before the Senate Veterans' Affairs 
Committee Concerning Pending Legislation to Include Discussion Draft, 
S. , No Bonuses for Bad Exams Act of 2022 (July 13, 2022); National 
Organization of Veterans' Advocates, Statement for the Record Before 
the House Committee on Veterans' Affairs Concerning Fulfilling Our 
Pact: Ensuring Effective Implementation of Toxic Exposure Legislation 
(Dec. 7, 2022); see also Department of Veterans Affairs, Office of 
Inspector General, Veterans Benefits Administration: Veterans Are Still 
Being Required to Attend Unwarranted Medical Reexaminations for 
Disability Benefits (March 16, 2023), https://www.va.gov/oig/pubs/
VAOIG-22-01503-65.pdf.

            1. Inadequate examinations

    The CAVC has repeatedly emphasized VA's role in obtaining 
examinations and ensuring those examinations are adequate. See, e.g., 
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (outlining when VA 
must obtain an examination); Barr v. Nicholson, 21 Vet.App. 120, 123 
(2007) (when VA seeks an opinion, the Secretary must ensure it is 
adequate); Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (adequate 
medical report must be based on correct facts and reasoned medical 
judgment).
    Despite this clear precedent, VA frequently failed to ensure 
veterans received timely, adequate VA disability examinations when the 
Veterans Health Administration conducted nearly all examinations. See, 
e.g., Department of Veterans Affairs (VA) Appeals Data Requested by 
House Committee on Veterans' Affairs Subcommittee on Disability 
Assistance and Memorial Affairs (January 2015) (reasons for remands 
between FY 2009 and 2014 centered on issues with medical examinations 
and opinions). This problem has not been solved with the shift to 
contract examinations.
    Frequently, BVA orders a particular type of examination, but it is 
conducted by an inappropriate provider, e.g., an OB/GYN nurse 
practitioner handling a neck and back exam. Or BVA provides specific 
instructions that are ignored by the examiner. Example: The veteran's 
claims for bilateral knee conditions were remanded back to BVA from the 
CAVC in 2020. BVA remanded in May 2021 and February 2022 for new 
medical opinions. In February 2022, BVA specifically ordered the VA 
examiner to address the veteran's competent lay statements regarding 
the history and chronicity of his knee symptoms. Because the VA 
examiner failed to comply with these instructions, BVA yet again 
remanded these claims for the examiner to comply with the order, adding 
untold months of waiting before the veteran receives resolution.
    In addition, NOVA members report that confusing examination 
requests contribute to inadequate exams and deficient reports. Many 
times, the request does not match the veteran's claims or incorporate 
the remand instructions articulated by BVA or the CAVC. Sometimes, the 
request is not clear as to whether the veteran must appear for an exam 
or the examiner can write the report based on a record review. Without 
clear guidance, examiners burdened with large workloads are bound to 
conduct inadequate exams and write incomplete reports.
    In June 2022, the VA Office of Inspector General acknowledged that 
``[r]esults of medical exams are critical pieces of evidence in 
supporting veterans' claims for benefits, and the exams represent a 
significant investment by VBA.'' Department of Veterans Affairs, Office 
of Inspector General, Veterans Benefits Administration: Contract 
Medical Exam Program Limitations Put Veterans at Risk for Inaccurate 
Claims Decisions i, June 8, 2022 (https://www.va.gov/oig/pubs/VAOIG-21-
01237-127.pdf). The report also found, among other things, that ``[a]ll 
three vendors failed to consistently provide VBA with the accurate 
exams required by the contracts'' and ``vendor exam accuracy has not 
improved and exam errors have not been resolved.'' Id. at 8; 10. 
Contract examiners must comply with the terms of their contracts and be 
held accountable when they fail to do so. Furthermore, contractors must 
correct errors and provide adequate examinations to reduce repeated 
remands, which result in continuing delay and backlogs.

            2. Overdevelopment

    NOVA members also report that VA frequently orders additional 
examinations even when adequate medical evidence of record exists and a 
favorable opinion has been rendered. Unnecessary examinations are 
particularly troublesome considering the statutory requirement for VA 
to consider private medical evidence. See 38 U.S.C. Sec.  5125 (``a 
report of a medical examination administered by a private physician 
that is provided by a claimant in support of a claim for benefits under 
that chapter may be accepted without a requirement for confirmation by 
an examination by a physician employed by the Veterans Health 
Administration if the report is sufficiently complete to be adequate 
for the purpose of adjudicating such claim'').
    Furthermore, VA may not undertake ``additional development if a 
purpose [is] to obtain evidence against an appellant's claim.'' Mariano 
v. Principi, 17 Vet.App. 305, 312 (2003). In some instances, NOVA 
members report the ordering of additional examinations that appear to 
be ``tie breakers,'' e.g., when there is one negative and one favorable 
opinion. Such exams are in contravention of VA law and policy requiring 
adjudicators to grant the claim when the evidence is in relative 
equipoise.
    Example 1: In February 2022, a VA contract examiner provided a 
favorable opinion on the veteran's claim for service connection for an 
arthritic condition. Despite this favorable opinion, VA obtained a 
second set of exams, which were unfavorable, and VA's denial made no 
mention of the first favorable exam. After a higher-level review, the 
claim was sent back for more development due to the ``difference of 
opinion.'' This time, the original examiner ultimately concluded the 
condition was ``more likely than not'' service connected. Nonetheless, 
VA denied the claim.
    Example 2: In July 2023, VA sent a claim out for an additional 
medical opinion where the VA examiner already provided a nexus opinion 
advising that the veteran's depression was secondary to his service-
connected hypothyroidism. The veteran, as a result of his Agent Orange 
exposure, is also service connected for Parkinson's disease.
    VA also routinely rejects favorable, well-rationalized, private 
medical opinions for improper/unlawful reasons, such as the examiner's 
``failure to review the veteran's claims file'' or because the 
examiner's opinion ``was based on the history reported by the 
veteran.'' The CAVC has repeatedly admonished BVA for rejecting 
favorable evidence for these reasons, yet these types of rejections 
continue to occur on a regular basis. See, e.g., Nieves-Rodriguez v. 
Peake, 22 Vet.App. 295, 304 (2008) (Board may not reject a private 
medical opinion in favor of a VA opinion solely because the VA examiner 
reviewed the claims file); Kowalski v. Nicholson,19 Vet.App. 171, 179-
80 (2005) (Board may not disregard a medical opinion solely because the 
opinion was based on a history provided by the veteran); see also 
Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) (``[R]eliance on a 
veteran's statement renders a medical report incredible only if the 
Board rejects the statements of the veteran.'').
    Solving these problems are key to reducing VBA's backlog, the 
Board's backlog, and allowing for more quality decisions to be issued 
throughout the system.

          B. Additional training is necessary so VA employees do not 
        deny claims on the basis that only the Board may grant a 
        certain claim.

    NOVA members frequently report that VA adjudicators, particularly 
Decision Review Officers (DROs) that handle higher-level reviews, state 
they cannot grant a benefit at their level and only the Board may do 
so. For example, a DRO recently informed one NOVA member that the Board 
has more leniency in interpreting the law than DROs. Another VA 
employee informed a NOVA member that they would need to check with 
``quality review'' to determine if a claim could be granted, and if it 
could not be granted (it was denied), the attorney should appeal to the 
Board so they could grant it.
    Statutes, regulations, and case law apply equally to VA and Board 
adjudicators. VBA needs to conduct additional training with its 
employees to emphasize that fact so unnecessary appeals are not filed 
to the Board.

                               CONCLUSION

    NOVA remains committed to working with Congress, VA, and fellow 
stakeholders to improve the VA disability claims and appeals process. 
Thank you again for allowing us to present our views on this important 
topic. If you have questions or would like to request additional 
information, please feel contact:

Diane Boyd Rauber, Esq.
Executive Director
National Organization of Veterans' Advocates, Inc.
1775 Eye Street, NW
Suite 1150
Washington, DC 20006
(202) 587-5708
drauber@vetadvocates.org
                                 ______
                                 

                 Prepared Statement of Michael Figlioli

    Chairman Luttrell, Ranking Member Pappas, and members of the 
subcommittee, on behalf of the men and women of the Veterans of Foreign 
Wars of the United States (VFW) and its Auxiliary, thank you for the 
opportunity to provide testimony with regard to the Board of Veterans 
Appeals and it practices.
    Since its establishment in 1933, the Board of Veterans Appeals 
(BVA) has a rich history with its primary purpose being to provide 
veterans with an avenue for appealing decisions made by the VA 
regarding claims for benefits. The BVA was created as part of a broader 
effort to streamline the appeals process and ensure that veterans 
receive fair and just consideration of their claims for benefits.
    Over the years the BVA has undergone several changes and reforms to 
enhance its efficiency and responsiveness to the needs of veterans. One 
significant milestone was the Veterans Judicial Review Act of 1988 
allowing veterans to appeal BVA decisions directly to the Court of 
Appeals for Veterans Claims (CAVC) marking a significant shift in the 
appeals process and providing veterans and appellants with an 
additional layer of judicial review.
    Perhaps the most substantial change to affect veterans, family 
members and survivors wishing to appeal their decisions on benefits 
claims to a higher authority was the enactment of the Appeals 
Modernization Act (AMA), in 2019. The primary goal was to modernize and 
streamline the appeals process but under the ``Legacy'' appeals system, 
too often appellants had to endure lengthy delays of months, sometimes 
years to navigate a confusing and complex structure and some are still 
stuck in that now outmoded system. The AMA aimed to address these 
issues by providing veterans with more options and a faster, more 
transparent process to appeal VA decisions.
    One of the key features of the AMA was the introduction of three 
new lanes for appellants to choose from when appealing a decision: 
Supplemental Claims, Higher Level Review and Direct Docket to the 
Board. The AMA emphasizes increased transparency and more effective 
communication throughout the appeals process. Veterans are provided 
with better information about the status of their claims with this 
streamlined system intending to reduce the backlog of cases in the AMA 
inventory.

NOD vs BVA Appeal

    A Notice of Disagreement (NOD) is a crucial first step in the 
appeals process for veterans seeking a review of their disability 
compensation claims with the Department of Veterans Affairs (VA). While 
the NOD is a formal expression of disagreement with a VA decision, 
historically it has not, in itself, constituted an appeal to the Board 
of Veterans Appeals (BVA). The ``Legacy'' NOD initiated the appeal 
process. It served as the first official notification to VA that the 
veteran disagreed with a particular decision. VBA would then draft a 
detailed Statement of the Case designed to explain the initial VA 
decision. The veteran would then have to complete an additional form, 
the Form 9, certifying the appeal to the BVA for docketing and review 
by a Veterans law Judge (VLJ).
    Under the Legacy Appeals system, this is where appeals often got 
stuck in the churn based on docket date, then awaiting assignment and 
review by their advocate who would then submit an Independent Hearing 
Presentation (IHP) on their behalf.
    Often, Legacy cases were remanded for common due process errors or 
for development of additional evidence. What became clear to the VFW 
was that this process was archaic and generally unnecessary in many 
appeals. Upon review, we determined that the IHP was not based in law 
or regulation. It was likely a holdover from practices many years ago 
and therefore, if a quality argument was presented on the Form 9, the 
appeal could proceed directly to the VLJ after our staff conducted a 
quality review. This process was highly successful, and VFW was able to 
eliminate its excess workload of Legacy appeals. Today, we are at 
functional zero and have been for more than a year thanks to the 
efforts of our BVA appeals team and their leadership. However, 
functional zero means that Legacy appeals continue to churn through the 
remand system, reappearing at the BVA at any time, creating the backlog 
of appeals that the BVA now faces under the modern appeal structure.
    The advent of the Appeals Modernization Act (AMA), to which VFW was 
a major contributor, was intended to alleviate the cycle of Legacy 
appeals and allow a VLJ to review them in a timelier fashion. Quicker 
decisions mean faster awards for claimants and quality of life 
improvements. Under AMA, when a veteran submits the new NOD on the 
required form, the appeal proceeds directly to the BVA through the 
veteran's selected docket: Direct review, evidence-only, or hearing. 
The BVA then has the opportunity to conduct a review of the claim based 
on the unique criteria of each lane.
    VFW is concerned with the continued excess workload in the AMA 
inventory. While the intent continues to be faster and more accurate 
decisions, there is work to be done. While VFW wants every veteran to 
have their chance to present their case before a VLJ it needs to be 
managed properly. By focusing mostly on Legacy appeals to reduce that 
inventory or cases requiring to be advanced on the docket (AOD), the 
remaining appeals languish. All the while, appeals continue to be 
certified to the board. Once a hearing is conducted and completed, VFW 
has seen delays in bad transcriptions and long wait times and even 
completed AMA files sitting in docket order at the conclusion awaiting 
the VLJs decision. If completed, they need to be moved out of the queue 
as expeditiously as possible.
    Hiring more staff attorneys and VLJs is an excellent step and one 
that we applaud. The BVA must have the resources to deliver on their 
responsibility to those who serve their country and want their day in 
court. Delivering more appeals decisions is admirable but those 
decisions must be accurate and timely and not just a number in a 
performance plan. The BVA made great strides during the challenges of 
COVID to provide veterans with the opportunity to have their hearing 
virtually. This was an immense innovation in the way the BVA does 
business and was well received by VSOs and veterans alike. Then came 
the challenges of staffing and maintaining consistency in the hearing 
branch. It seemed that every time someone was assigned to one of our 
staff and a positive relationship was being developed, they were moved 
to another team or position. We had to start over again, possibly with 
an inexperienced coordinator and this contributed to delays, 
reschedules or misreported no-show because the information didn't get 
to the VLJ. We are happy to see this has improved.
    We continue to hear from our BVA staff that there are problems with 
electronic management systems intended to manage the workflow. CASEFLOW 
needs to be improved or another system that meets the needs of 
advocates developed. For years now, we have heard that it is not 
accurately updated, it fails to give a defined picture as to where in 
the appeals process a case is and it needs to be updated. One of the 
greatest limitations is information that is accessible to a veteran's 
representative and what issues are on appeal. The issues are the basis 
of what the veteran is seeking and impossible to address if they are 
inaccurate or inaccessible.

BVA Remands for development

    The remand process from the Board of Veterans Appeals (BVA) to the 
Veterans Benefits Administration (VBA) is a crucial aspect of the 
veterans' benefits adjudication system and often the most confounding 
as the workflow may not keep pace with the progression of the appeal. 
When the BVA identifies deficiencies or gaps in the evidence presented 
during the appeals process, or in providing the appellant due process, 
it has the authority to remand the case back to the VBA for further 
action or development. This step is intended to reflect VA's commitment 
to ensuring a fair and comprehensive review of veterans' claims.
    VFW has found that despite the intention of this step in the 
process, often, if the record was fully associated with all the 
evidence or a complete and thorough review had been completed prior to 
a decision being rendered, a remand can be duplicative or completely 
unnecessary. The BVA may identify specific areas where more information 
is needed to make a well-informed decision which is a positive for the 
veteran in achieving the benefits sought on appeal but only if timely 
and more importantly accurate to reduce the possibility of continued 
remands. VFW is aware that the remand rate for Legacy appeals is 40 
percent, and the typical Legacy appeal has been remanded at least 
twice. We have also seen some cases remanded as many as seven times.
    Under the Legacy system, VBA would receive a remand, complete its 
required development, and return the appeal to the BVA for 
readjudication. Under AMA, remands are returned to VBA for rework and 
VBA issues a new decision without further Board review, restarting the 
veteran's review rights, which include not only the NOD, but also 
Supplemental Claim and Higher Level Review.
    The purpose of AMA was to eliminate remands altogether. The BVA 
needs to work more collaboratively with the veteran's accredited 
representative to let the veteran know exactly what they need to 
provide to succeed. That said, perhaps we must revisit the AMA and 
begin discussions as to further enhancements and improvements to the 
remand and readjudication processes.
    The remand process serves as a means of enhancing due process for 
veterans. By allowing for further development, when necessary, it 
acknowledges that some cases may not have been thoroughly examined in 
the initial stages. This iterative approach ensures that veterans have 
ample opportunity to present their cases and that decision-makers have 
access to all relevant information before reaching a final decision.
    It is the VFW's position that communication and coordination 
between the BVA, VBA and accredited representatives are critical during 
the remand process. Clear and concise directives that the decision-
maker must comply with from the BVA to the VBA help streamline the 
further development of cases. Effective collaboration between these 
entities is essential to ensure that the remand process serves its 
intended purpose without unnecessary complications and needless delays.

VBA data usage BVA Remands

    The Veterans Benefits Administration (VBA) plays a crucial role in 
ensuring that veterans receive the benefits and support they deserve. 
To achieve this goal, the VBA relies on various sources of data, 
including information from the Board of Veterans Appeals (BVA) remand 
orders. Remands occur when a case is sent back to the BVA from higher 
courts for further review or action. Analyzing the extent to which the 
VBA utilizes data from BVA remands is essential in understanding the 
agency's commitment to continuous improvement in quality assurance and 
training programs and VFW would like to thank the VA Undersecretary for 
Benefits and his staff for their commitment to ensuring that lessons 
learned are applied not only to future cases and have shown the 
willingness to incorporate important changes in law or administrative 
process into their training courses.
    One key aspect of the VBA's use of BVA remand data is in 
identifying trends and patterns related to denied claims. By 
scrutinizing the reasons behind remands and denials, the VBA can 
pinpoint areas where its decision-making processes may need refinement. 
This information becomes invaluable for quality assurance efforts, 
allowing the VBA to address systemic issues and enhance the accuracy of 
claims processing. Additionally, understanding common reasons for 
remands can guide the development of targeted training programs to 
improve the skills and knowledge of VBA personnel.
    Another dimension of the VBA's reliance on BVA remand data lies in 
its ability to adapt to changes in laws or regulations affecting 
veterans' benefits. As legal interpretations evolve, remands may 
highlight areas where the VBA needs to align its practices with updated 
requirements. This responsiveness is crucial for maintaining compliance 
and ensuring that veterans receive the benefits to which they are 
entitled. By incorporating insights from BVA remands into its training 
programs, the VBA can keep its workforce informed and equipped to 
navigate the complex and evolving landscape of veterans' benefits law.
    The extent to which the VBA uses data from BVA remands is critical 
for shaping its quality assurance and training programs. The constant 
analysis of BVA ordered remands provides valuable insights into areas 
for improvement in decision-making processes, compliance with all legal 
requirements, internal communication, and documentation practices. By 
actively incorporating these insights into its operations, the VBA can 
enhance the accuracy and efficiency of veterans' benefits claims 
processing, ultimately fulfilling its mission to serve those who have 
served our nation.

BVA usage of CAVC data

    The Board of Veterans Appeals (BVA) has a highly significant role 
in the adjudication of veterans' claims for benefits, and its decisions 
are at times subject to review by the U.S. Court of Appeals for 
Veterans Claims (CAVC). The CAVC, through its orders, provides legal 
guidance and sets precedents that may influence how the BVA adjudicates 
cases. While the BVA is not directly bound by the CAVC's decisions, we 
know that it often considers them in shaping its own rulings. The 
extent to which the BVA uses data from CAVC orders to inform its 
quality assurance and training programs is as important an aspect as 
that of VBA using and interpreting data to develop its policies and 
proposing future legislation. It is also a key to ensuring consistency 
and fairness in the adjudication process.
    By BVA using data from CAVC orders through case analysis it can 
guarantee the accurate application of the law as intended by VA or 
Congress. By examining the reasoning and outcomes of cases reviewed by 
the CAVC, the BVA can identify patterns, common legal issues, and areas 
where its decisions may be prone to challenge. This data-driven 
approach allows the BVA to pinpoint specific areas for improvement in 
its decision-making process and tailor its training programs 
accordingly.
    Quality assurance within the BVA must involve continuous evaluation 
of its decisions to identify errors or inconsistencies. The analysis of 
CAVC orders can serve as a valuable resource in this regard. If the 
CAVC overturns a BVA decision, it provides a clear signal that there 
may be flaws in the initial adjudication. BVA can then implement 
corrective measures to enhance the quality of its decisions and reduce 
the likelihood of future reversals.
    However, it's essential to recognize that the BVA operates within a 
broader legal framework, and CAVC decisions are just one of many 
factors influencing its practices. While CAVC orders can provide 
valuable guidance, the BVA must also consider other legal authorities, 
statutes, and regulations. Striking the right balance between adapting 
to legal developments and maintaining consistency in training and 
proper adjudication is a complex challenge that the BVA faces.
    Overall, VFW is pleased with the reforms and changes made at the 
Board of Veterans Appeals over the last several years. We must all keep 
in mind that the AMA is a framework whose intended passage must 
continue to be revisited and adjusted to keep pace with changes in 
regulation. BVA must maintain a fully staffed and well-trained 
workforce. VFW encourages the Chairman to continue to reach out in 
collaboration with the VSO and accredited representative community to 
advance its agenda. By the same token BVA must also be responsive to 
suggestion and constructive criticism. Communication and interaction 
from all levels of the BVA are crucial to the positive outcomes we all 
strive for in representing appellants before the Board. VFW encourages 
the BVA leadership to fill vital open senior management positions as 
quickly as possible to provide continued continuity and direction the 
BVA staff. This will enable the BVA, its organization and mission to be 
refined to deliver on its promise of faster, clearer, more transparent 
operations and appeals decisions. Our organization look forward to 
contributing to this effort, recognizes the value of our partnership 
and will continue to make positive changes in our business processes 
that serve veterans, their families, and survivors.
    Chairman Luttrell, Ranking member Pappas this concludes our 
testimony. I am happy to answer any questions you may have.
                                 ______
                                 

                  Prepared Statement of Zachary Stolz

    Chairman Luttrell, Ranking Member Pappas, and Members of the 
Subcommittee:
    Thank you for inviting Chisholm Chisholm & Kilpatrick LTD (CCK) to 
testify at today's legislative hearing of the Subcommittee on 
Disability Assistance and Memorial Affairs.
    CCK is a public interest law firm, with offices in Providence, 
Rhode Island and Houston, Texas. We serve clients across the nation 
focusing on veterans disability compensation, bequest management, and 
long-term disability insurance claims. Since 1999, CCK has represented 
thousands of veterans and their family members before VA and the U.S. 
Court of Appeals for Veterans Claims. CCK has the most VA-accredited 
attorneys, practitioners, and claims agents of any law firm in the 
United States. The firm has been involved in legislative processes and 
landmark, precedent-setting cases that have benefited the entire 
veterans' community.
    We are pleased to offer our views on these issues impacting 
veterans and their families.

                              Introduction

    Congress passed the Veterans Appeals Improvement and Modernization 
Act of 2017 ``to expedite VA's appeals process,'' as a response to VA's 
ever-growing backlog of appeals and increasing wait times throughout 
the claims process. H.R. Rep. No. 115-135, at 2 (2017). As we approach 
the fifth year in the AMA, wait times at the Board of Veterans' Appeals 
are as long as ever: the Board is failing to meet its 365-day stated 
goal for issuing direct docket decisions, and it is taking years to 
adjudicate evidence and hearing docket appeals. This is despite a 
historic budget for Fiscal Year (FY) 2024 and the availability of 
increased resources. Congress must act to ensure that the promises made 
to our nation's veterans are promises kept.
    At the Subcommittee's invitation, I will address the following:

        1. The Board's failure to issue timely AMA Decisions.

        2. The Board's high remand rate, a problem the AMA is supposed 
        to fix.

        3. The use of waiver as an effective tool for veterans and 
        their advocates to secure timely resolution of their Board 
        appeals.

        4. The Board's rising expenditure per case and contrasting 
        production stagnation.

        5. The experience level and quality of new Board members.

        6. The most recent Chairman's Report.

        1. The Board of Veterans' Appeals is not Issuing AMA Decisions 
        Swiftly.

    In the Legacy appeals system, VA delays were prolonging appeals 
over three years, on average. Government Accountability Office, VA 
Disability Benefits: Additional Planning Would Enhance Efforts to 
Improve the Timeliness of Appeals Decisions (GAO-17-234) (Mar. 2017). 
With an appeal rate increasing by 20 percent every year, the average 
wait time in the Legacy system was projected to rise to eight-and-a-
half years. Id. Support for appeals reform legislation highlighted how 
it would not only ``efficiently and effectively resolve backlogged 
claims'' but also ``prevent this kind of backlog from happening in the 
future.'' 163 Cong. Rec. H4417-03 (daily ed. May 22, 2017).
    To address these concerns, the Board committed to issuing decisions 
in the direct docket within 365 days and decisions in the evidence 
docket in approximately 18 months. See Decision Wait Times, Board of 
Veterans' Appeals, available at https://www.bva.va.gov/decision-wait-
times.asp (last accessed Nov. 22, 2023). Veterans whose appeals had 
been sitting for years in the Legacy system were enticed with these 
clear timeframes to move their cases out of Legacy and into the AMA. 
Options to move cases from Legacy to AMA were many, including via VA's 
pilot program, the Rapid Appeals Modernization Program (RAMP), or by 
opting a Legacy Statement of the Case (SOC) or Supplemental Statement 
of the Case (SSOC) into the AMA.
    The Board has failed to achieve its stated AMA decision timeliness 
goals. At the AMA's outset, the Board was initially issuing timely 
decisions in the direct docket. But that changed once more veterans had 
opted into the AMA and as the Board changed the formula for how it was 
deciding AMA versus Legacy cases. The Board prioritized Legacy cases to 
the detriment of AMA appeals. The Board did this without regard to the 
fact that many veterans opted their Legacy cases into AMA in response 
to VA's pleas and promises to decide cases faster in the AMA. A 
population of these veteran claimants had earlier docket numbers than 
those who did not opt their appeals into AMA, meaning that veterans who 
opted in lost an earlier place in line at the Board for a decision. As 
a result, veterans who declined to opt into AMA, and who remained in 
Legacy, found themselves further ahead in line than their counterparts 
who had been waiting longer for a decision. This result ran counter to 
VA's promise to eligible veterans that opting into an AMA appeal lane 
``may lead to an earlier resolution of your claim.'' RAMP Opt-In 
Letter, available at https://benefits.va.gov/BENEFITS/docs/appeals-
RAMP-Opt-in-letter.pdf (last accessed Nov. 22, 2023).
    According to VA's AMA Metrics report, current through October 2023, 
the Board's average days to a decision in the direct docket are 592 and 
692 in the evidence docket. See AMA Metrics Reports, October 2023, Tab 
``Part 1--AMA (E, G, J),'' available at https://www.benefits.va.gov/
REPORTS/ama/ (last accessed Nov. 22, 2023). These numbers reflect a 
mean, not a median, average. Because some appeals are advanced on the 
Board's dockets due to advanced age, serious illness, or financial 
hardship, those appeals are prioritized, regardless of docket order. 
They are decided within a few months, skewing the data as to how long 
the average person whose case is not advanced at the Board is waiting. 
The reports therefore do not account for the experience of a veteran at 
either end of the spectrum: they overshoot the waiting period for an 
advanced-on-docket claimant by years, and yet they still underestimate 
the waiting period for a veteran whose case is not advanced.
    The Board's shift to focus primarily on Legacy appeals has created 
a massive AMA backlog. At the end of October 2023, there were 186,543 
AMA appeals pending at the Board. See AMA Metrics Reports, October 
2023, Tab ``Part 1 AMA (A-D),'' available at https://
www.benefits.va.gov/REPORTS/ama/ (last accessed Nov. 22, 2023). By 
contrast, the Board had only decided 32,661 AMA appeals in FY 2023. See 
Decision Wait Times, Board of Veterans' Appeals, available at https://
www.bva.va.gov/images/appeals/ama-appeals-decided-past-five-years-
large.jpg (last accessed Nov. 22, 2023).
    These delays, along with the growing volume of AMA backlogged 
appeals at the Board, confirm that VA has not only failed to 
``efficiently and effectively resolve backlogged claims'' but has also 
failed to ``prevent this kind of backlog from happening in the 
future.'' 163 Cong. Rec. H4417-03 (daily ed. May 22, 2017). The Board's 
failure to keep its commitment to veterans in AMA has caused the 
Board's AMA dockets to suffer from the same serious deficiencies (like 
a massive backlog and egregious wait times) that plagued the Legacy 
system Congress attempted to fix. The Board's inability to manage its 
AMA dockets has effectively resulted in untenable wait times for many 
deserving veterans.

        2. The Board Remands at an Alarmingly High Rate, a Problem the 
        AMA Set Out to Fix.

    In the VA system, a veteran's appeal is remanded back to a VA 
regional office if the record is not complete for the Board to make a 
fully informed or favorable decision. Of the 70,584 decisions issued on 
Legacy appeals in FY 2023, approximately 44 percent of those decisions 
were remands. In the AMA system, the Board decided over 32,000 AMA 
appeals and remanded approximately 28 percent of them. See 
``Dispositions by hierarchy,'' Quarterly Reports for FY 2023, Board of 
Veterans' Appeals, available at https://www.bva.va.gov/
Quarterly_Reports.asp (last accessed Nov. 24, 2023). In other words, 
close to half of all Legacy appeals, and more than a quarter of all AMA 
appeals, were returned to VA's regional offices for further development 
in FY 2023.
    Each remand means that veterans must wait even longer for a final 
decision to be made on their claim. It also means that the Board is 
expending resources to work on a case, issue a remand, and send it back 
to a regional office for further development. Many of these remanded 
cases ultimately return to the Board if a decision from the regional 
office is not favorable to the claimant.
    VA's remand rate has remained high over the past three years, with 
the Legacy remand rate increasing year over year. A high remand rate is 
particularly damaging to veterans in the AMA, as these veterans lose 
their place in line on the Board's AMA dockets after a remand. This 
results in veterans waiting years longer for a final decision on their 
claim.

        3. Waiver is an Important Tool for Veterans and their Advocates 
        to Secure Timely Resolution of their Board Appeals.

    Accepting a knowing waiver of certain rights from veterans will 
help the Board make faster decisions on claims, such as requests for a 
total disability rating based on individual unemployability (TDIU). 
This is a benefit reserved for veterans whose service-connected 
disabilities prevent them from securing and following substantially 
gainful employment. Veterans can be awarded schedular TDIU if they meet 
certain rating criteria and may still qualify for what is called 
``extraschedular'' TDIU if they do not.
    Section 4.16(b) states that veterans' cases should be referred to 
the Director of the Compensation Service for extraschedular 
consideration of TDIU when their service-connected disability 
limitations render them unable to work but do not meet the percentage 
requirements for schedular TDIU. 38 C.F.R. Sec.  4.16 (2023).
    Many veterans seeking extraschedular TDIU at the Board find that 
the Board refuses to issue a final decision on entitlement to 
extraschedular TDIU. Instead, the Board remands to a regional office 
for extraschedular consideration by the Director of the Compensation 
Service, who often rubber-stamp denies TDIU, leaving the veteran with 
no choice but to file another appeal (and wait for it to be decided) to 
continue seeking the benefit.
    Veterans should be able to waive their right to review by the 
Director of Compensation in favor of receiving a decision from the 
Board, which is qualified to make a TDIU determination. This is 
especially true since the Veterans Court has made clear that the 
Director's opinion is not evidence in a case. See Wages v. McDonald, 27 
Vet.App. 233, 236 (2015). The opportunity for waiver can be a tool of 
efficiency that costs VA and the Board nothing.
    The same type of waiver should be available for VA's duty to 
assist. The phrase ``duty to assist'' describes VA's obligation to help 
veterans develop their claims by gathering potentially supportive 
evidence, such as service records, medical records, and more.
    If the Board finds that a regional office made a duty to assist 
error, it usually remands the case and instructs the RO to fix that 
error. While the Board is not obligated to remand cases for additional 
development, it often does, leading to one cause of the alarming remand 
rates at the Board. To help minimize unnecessary wait times for 
veterans, veterans should have the right to waive the duty to assist in 
some cases.
    If an appeal is at the Board, and if the record is fully 
developed--meaning that the file contains enough favorable evidence 
warranting a grant of benefits--then a veteran should have the right to 
waive any additional development under VA's duty to assist.
    In CCK's experience, and in so many cases, the Board's duty to 
assist remands unfortunately do not yield a positive result for the 
veteran in the long run. Remands for more information--that is not even 
necessarily favorable to the claimant or may not exist--simply hold up 
the process for veterans who have already been waiting oftentimes years 
for a decision. The Office of the Inspector General confirmed that the 
duty to assist process is not always fruitful or necessary, discovering 
that 37 percent of cases reviewed during a portion of FY 2017 included 
unwarranted reexamination requests. Department of VA, Office of the 
Inspector General (OIG), Unwarranted Medical Reexaminations for 
Disability Benefits, Report #17-04966-201, available at https://
www.va.gov/oig/pubs/VAOIG-17-04966-201.pdf (last accessed Nov. 23, 
2023).
    The duty to assist is an important right for veterans and an 
essential part of the VA benefits process, but once all development is 
complete, veterans should be able to tell the Board that there is no 
reason for further development. The Board would then be able to quickly 
render a decision on the case and move on to the next one. If the 
purpose of the duty to assist is truly pro-claimant, and if it is meant 
to be a benefit to a veteran to assist with claim development, then 
veterans should be able waive the benefit that is statutorily provided 
for them.

        4. The Board of Veterans' Appeals Cost Per Case is Rising while 
        Production Stagnates.

    The Board of Veterans' Appeals budget for Fiscal Year (FY) 2023 was 
$285 million, a 20 percent increase from the previous fiscal year. The 
cost for the Board to work each case in FY 2023 was approximately 
$2,760, a 63 percent increase since 2020 and almost $500 more per case 
than just last year.
    The Board's production has not risen in step with these increases. 
In FY 2022, the Board made 95,294 decisions. In FY 2023, with a 20 
percent larger budget, it made 103,245 decisions. Since FY 2020, the 
Board's budget has surged by approximately 61 percent, escalating from 
$174 million in 2020 to $285 million in FY 2023. Strikingly, the 
increase in budgetary allocation has not proportionally translated into 
enhanced productivity. In comparison, the Board only decided 0.5 
percent more appeals in 2023 than in 2020.

        5. There are Concerns about the Experience Level and Quality of 
        New Board Members.

    One contributing factor to the rising cost per case is the 
inexperience of Veterans Law Judges (VLJs) the Board is hiring. 
Traditionally, VLJ applicants were required to possess a minimum of 
seven years' experience in veterans law. This prerequisite ensured a 
comprehensive understanding of VA regulations, the dynamic landscape of 
caselaw from the courts, and other essential nuances critical to 
delivering high-quality decisions.
    In February 2020, the longstanding seven-year experience 
requirement was eliminated from the VLJ hiring criteria. This policy 
shift opened the door for the recruitment of VLJs with no prior 
experience in veterans law. Since the summer of 2021, more than 50 
percent of VLJs hired at the Board lacked any prior background in 
veterans law.
    The impact of this change is evident in the data: inexperienced 
VLJs have issued significantly fewer decisions compared to their more 
seasoned counterparts. In 2021, thirteen inexperienced VLJs averaged 1 
to 6 decisions per week, while more experienced VLJs consistently 
issued between 13 and 26 decisions per week. Based on these figures, it 
is projected that inexperienced VLJs will issue approximately 3,432 
decisions in a year, while their experienced counterparts will 
contribute approximately 14,872 decisions. This stark contrast 
represents a difference of over 11,000 decisions, exceeding 10 percent 
of the Board's annual output.
    These concerns prompted a group of experienced VLJs to write a 
letter to my firm, highlighting the adverse effects of these practices. 
The letter underscores that experienced VLJs are now burdened with 
training their inexperienced colleagues, in addition to managing their 
existing responsibilities. This extends even to Board attorneys, who 
are now tasked with training their own supervisors, creating conflicts 
with the Board's longstanding policy that VLJs are entrusted with the 
training and mentoring of attorneys.
    Regrettably, these changes have a direct and detrimental impact on 
veterans, their dependents, and their survivors. Inexperienced judges 
without proper training are likely to issue fewer decisions, resulting 
in prolonged wait times for the hard-earned VA benefits upon which 
veterans and their families depend. It is imperative to reevaluate the 
recent changes in VLJ hiring practices and consider their implications 
on the Board's ability to fulfill its mission effectively.

        6. The Chairman's Report Needs Proper Context.

    According to the Board Chairman, Veterans Court ``judge 
dispositions on the merits overwhelmingly uphold Board decisions at a 
rate of at least 95 percent affirmed to less than 5 percent reversed.'' 
Chairman's Annual Report, FY 2022, at 14, available at https://
www.bva.va.gov/docs/Chairmans_Annual_Rpts/bva2022ar.pdf (last accessed 
Nov. 24, 2023). While outright reversal of Board decisions is 
relatively rare, this statement is misleading. The Court's annual 
report shows that in appeals decided on the merits by at least one 
judge, the Court affirmed only 411 appeals. U.S. Court of Appeals for 
Veterans Claims, Annual Report, FY 2022, at 3, available at https://
www.uscourts.cavc.gov/documents/FY2022AnnualReport.pdf (last accessed 
Nov. 24, 2023). In contrast, the Court at least partially vacated about 
1,120 cases decided on the merits by at least one judge. Id. So, when 
accounting for remands based on Board error, the actual rate of 
affirmance in appeals decided on the merits by at least one judge is 
approximately 27 percent--far less than the 95 percent rate cited in 
the Chairman's Report.
    Furthermore, the remaining 1,120 appeals that are remanded by a 
judge reflect only a fraction of all the appeals that the Court remands 
to the Board. As the Chairman's Report recognizes, the vast majority of 
the 6,000-plus appeals that the Court remanded in FY 2022 were based on 
a joint motion in which the claimant's attorney and VA's attorney 
agreed that the Board erred in some way. Those errors include the 
failure to apply a relevant statute or regulation, the failure to 
ensure compliance with the duty to assist, improper application of the 
rules for assessing the credibility of lay evidence, or the complete 
omission of favorable evidence in the Board's analysis, among many 
others.
    According to the Chairman's report, however, these joint motions 
are merely agreements between ``Court clerks and VA Office of General 
Counsel attorneys [] to jointly remand select issues from appealed 
cases back to the Board so the judge can further explain the reasons 
and bases supporting the judge's denial.'' Chairman's Annual Report, FY 
2022, at 17. Court clerks are not parties to joint motions for remand, 
contrary to the Chairman's characterization of the motions. And joint 
motions are rarely--if ever--for the Board to simply provide further 
explanation for its denial. Decades of case law has made clear that 
``remand is not required in those situations where doing so would 
result in the imposition of unnecessary burdens on the[Board] without 
the possibility of any benefits flowing to the appellant.'' Winters v. 
West, 12 Vet.App. 203, 208 (1999) (en banc) (bracketing in the 
original).
    Though some joint motions for remand are based on the Board's 
failure to provide an adequate statement of reasons or bases for its 
denial, the Chairman's Report is incorrect that these remands are not 
based on legal error. See Chairman's Annual Report, FY 2022, at 17. The 
Board is statutorily required to provide an explanation for its 
decision that is sufficient to allow judicial review of its findings. 
When it fails to do so, its decision is not in accordance with law 
(i.e., 38 U.S.C. Sec.  7104(d)(1)). Remands on this basis are not for 
the Board to simply ``further explain the reasons and bases supporting 
the [Board]'s denial.'' Chairman's Annual Report, FY 2022, at 17. They 
are for the Board to reexamine the record and issue a new, complete 
decision that the Court can review, if necessary. The Court must also 
``take due account of the rule of prejudicial error.'' Shinseki v. 
Sanders, 556 U.S. 396, 409 (2009). This means that the Court is not 
sending cases back to the Board unless the veteran has shown that they 
have suffered harm because of the Board's error.
    The report's significant misrepresentations about the process at 
the Veterans Court are concerning. The overall tone of the report 
borders on hostility to the Court's role in this process. This 
hostility is entirely misplaced. It is also concerning that the Board 
foists blame on the Court and on veterans' advocates for Board delays. 
Any cursory review of the actual data demonstrates that this is not the 
case.

                               Conclusion

    The Board is faced with a difficult and vital task. Its members and 
staff work hard and with the best interests of veterans in mind, but 
the Board can and must be improved. Thank you for inviting CCK to give 
some of its thoughts on these issues. If you have questions or would 
like to request additional information, please feel free to contact:

Zachary M. Stolz, Esq.
Partner
Chisholm Chisholm & Kilpatrick LTD
321 S Main St #200
Providence, RI 02903
zstolz@cck-law.com
401-331-6300
                                 ______
                                 

                  Prepared Statement of Douglas Massey

    Chairman Luttrell, Ranking Member Pappas, and Members of the 
Subcommittee:
    Thank you for inviting the American Federation of Government 
Employees (AFGE) to participate in today's Subcommittee Hearing 
entitled, ``Examining the VA Appeals Process:Ensuring High-Quality 
Decision-Making for Veterans' Claims on Appeal.'' My name is Douglas 
Massey, and for the past seven years, I have had the honor of serving 
as President of AFGE Local 17, representing approximately 900 attorneys 
and additional support staff at the Board of Veterans' Appeals (``the 
Board''). On behalf of AFGE, its National Veterans Affairs Council, and 
AFGE Local 17, it is a privilege to offer insights to the Disability 
Assistance and Memorial Affairs (DAMA) Subcommittee on ways to enhance 
the Board's appeals process for the benefit of our nation's veterans.
    The foundation of well-informed decisions, whether in the public or 
private sector, lies in the unique perspectives of those directly 
engaged in the work. This is where unions such as ours play a crucial 
role. As frontline employees responsible for adjudicating veterans' 
claims, we possess a distinct perspective on both the strengths and 
shortcomings of current Board procedures. My testimony today aims to 
highlight areas where both Board leadership and this Subcommittee can 
support the dedicated workforce, focusing on recruitment and retention, 
training, as well as workload and performance. Addressing these aspects 
will empower the Board's personnel to fulfill their mission of 
providing timely resolutions to the claims of our nation's veterans, 
many of whom have endured lengthy waits for final decisions.
    Regrettably, recent leadership changes at the Board have introduced 
challenges within the organization, contributing to demoralization 
among our dedicated employees, with some considering leaving. The 
turmoil arises from decisions made by a relatively new leadership team 
lacking veterans law experience. These decisions include downgrading 
the career path for attorneys, appointing Veterans Law Judges (VLJs) 
lacking any experience in veterans law, providing deficient training 
and support for our professional staff, and imposing unrealistic quotas 
hindering thorough evidence examination. This confluence of factors has 
created a chaotic work environment, negatively impacting the 
effectiveness of the Board's operations, to the detriment of the 
veterans we serve.

Downgrade of the Attorney Career Path to GS-13

    For many decades, the Board has had a GS-14 career path for 
attorneys. Some two years ago, however, Board leadership downgraded the 
career path to GS-13, which is counterintuitive from a management 
perspective and does not help the VA's and this subcommittee's goal of 
recruitment and retention of talent. Any competent executive 
understands the importance of competitively remunerating the highest 
qualified candidates for any job based on their work and abilities. 
Eliminating this level of growth and compensation for attorneys 
dissuades qualified applicants from joining the Board or choosing to 
stay long-term. Instead of aligning with the standards of colleagues in 
private practice, Board management has effectively lowered the salary 
cap for attorneys, widening the competitive pay gap among attorneys in 
the public and private sectors. We firmly believe that this Committee 
shares our commitment to ensuring that disability claims for veterans 
and their families receive the highest level of attention. We have 
requested Board leadership and Secretary McDonough to reconsider this 
shortsighted policy to attract and retain the best candidates to the 
Board's ranks. Neither responded. Furthermore, while this shortsighted 
decision only impacts new hires, it sent a strong message to the entire 
attorney-workforce that they are not valued.
    We further propose that the Board take a more comprehensive step by 
creating a competitive journeyman non-supervisory GS-15 attorney 
position. Currently, Board attorney grades range from GS-11 to GS-14, 
with nearly half of decision-writing attorneys at the GS-14 level. 
While not all attorneys would qualify or choose to advance to a GS-15 
position, establishing the possibility for 100 to 200 GS-15 attorneys 
would significantly contribute to long-term recruitment and retention. 
It is noteworthy that non-supervisory journeyman GS-15 attorneys exist 
within the VA Office of General Counsel, setting a precedent. Given 
that Board attorneys are in the Excepted Service, it is within the 
Secretary's discretion to create and fill these new positions. We ask 
the committee to take legislative action.

Inexperienced Veterans Law Judges

    The decision to hire VLJs without any veterans law experience is 
equally disruptive and detrimental to the Board's mission. 
Historically, VLJs were required to possess a minimum of seven years of 
experience in veterans law, acknowledging the intricate nature of the 
work involving complex legal statutes, evolving caselaw, and nuanced 
medical terminology in VA disability claims. To our dismay, in February 
2020, the longstanding seven-year requirement was abruptly eliminated 
from the VLJ hiring criteria, opening the door for appointments for 
those without any veterans law experience. Shockingly, over 85 percent 
of VLJs hired since the summer of 2021 arrived without this essential 
expertise, a shift that we believe is detrimental to veterans and 
taxpayers alike.
    The data reveals a stark contrast in decision output between 
inexperienced VLJs and their seasoned counterparts. From October 2021 
to June 2022, inexperienced VLJs issued an average of one to six 
decisions per week, while VLJs with seven or more years of experience 
issued between 13 and 26 decisions weekly. Extrapolating these data 
suggests a significant difference in outcomes, with inexperienced VLJs 
likely issuing approximately 3,432 decisions compared to the 14,872 
decisions projected from experienced counterparts, a difference of over 
11,000 decisions or more than 10 percent of the Board's annual output.
    In addition to fewer decisions, attorneys complain that the 
inexperienced VLJs struggle with approving quality decisions, requiring 
that attorneys train the VLJs for whom they work. Similarly, many of 
the Board's experienced VLJs are now tasked with training their new 
inexperienced colleagues, which detracts from time they could devote to 
signing decisions. A VLJ's job is extremely difficult. They are already 
under immense pressure to review and sign at least 20 decisions per 
week, conduct numerous hearings, and mentor attorneys. The practice of 
attorneys training these inexperienced VLJs to whom they report 
conflicts with the Board's longstanding policy that VLJs are charged 
with training and mentoring attorneys. When VLJs lack the knowledge and 
experience to train their attorney-subordinates, a knowledge gap 
results in the more junior attorney ranks. This knowledge gap will 
ultimately reduce the quality of Board decisions and harm veterans. As 
things stand, a junior attorney cannot rely on the inexperienced VLJ 
supervisor to answer any questions of law, and more experienced 
attorneys cannot engage in productive dialog regarding complex or novel 
legal issues.
    Furthermore, the hiring of inexperienced VLJs has demoralized 
attorneys because it has foreclosed promotion opportunities to these 
coveted positions. Some attorneys have indicated they plan on retiring 
earlier than expected. These complaints are also reflected in an August 
2021 survey of over 200 Board attorneys in which 74 percent of 
respondents agreed with the statement: ``The hiring of Veterans Law 
Judges from outside the Board has discouraged my hope of being promoted 
to that position.'' Only 5.5 percent disagreed. This should cause alarm 
because more than 400 attorneys and VLJs, including probationary 
employees, have left the Board in just the past five years. Clearly, 
the Board's new hiring practice undermines the goal that the federal 
government be a model employer by attracting and retaining talent.
    Experienced VLJs also feel disheartened, witnessing the erosion of 
promotion opportunities for highly qualified attorneys they've 
mentored. A group of experienced VLJs felt compelled to raise awareness 
about these practices, advising an external law firm specializing in 
veterans' benefits litigation, a move that has received coverage in 
Spectrum News on September 22, 2022.\1\ The VA's press team declined to 
comment on the story. Perhaps VA leadership can comment on this issue 
at today's hearing. AFGE respectfully requests your assistance in 
resolving this important matter through your oversight and legislative 
abilities. Indeed, we ask that the seven-year experience requirement 
for entry-level VLJs be codified into law.
---------------------------------------------------------------------------
    \1\ See https://ny1.com/ nyc/ all-boroughs/ politics/ 2022/ 09/ 22/ 
veteran-affairs-comes-under-fire-after-massive-backlog-.

---------------------------------------------------------------------------
Training

    The Board has also failed to provide sufficient training and 
support to new and experienced attorneys because of management's 
singular focus on the Board's overall output while failing to 
prioritize work product quality. The lack of training at the Board has 
been so severe that VLJs have reached out to me and my union colleagues 
for assistance. I can proudly say that for the benefit of veterans in 
our care, Local 17 has tried to fill the training gap left by 
management.
    In response to a plethora of complaints and inaction by management, 
Local 17 initiated a special program led by Dr. Benton Komins, a 
steward aimed at providing tools, support, and efficiency strategies to 
ensure the success of decision-writing attorneys. Collectively, Dr. 
Komins and his team of volunteer Local 17 bargaining unit attorneys 
have offered individualized assistance and training to an average of 50 
attorneys per year. While upper management has taken notice of Dr. 
Komins' successful initiative, there has been no effort whatsoever to 
institute an analogous program on their part. In contrast to the 
successful Local 17-initiated assistance project, management offered a 
total of two hours' mandatory training in the past year regarding the 
PACT Act. Notably, VBA provided its employees 15 hours of mandatory, 
time prorated training. The minimal PACT Act training provided by the 
Board stands in stark contrast to the complexity and breadth of the 
Act. Unfortunately, and predictably, the impacts of minimal training 
include decreased quality of decisions. As this subcommittee is well 
aware, the PACT Act introduced substantial changes to veterans law. 
With only two hours of training, Board attorneys and VLJs are ill-
equipped to understand the nuances of this statute, significantly 
increasing the risk of errors and inadequate decisions for veterans 
seeking their rightfully earned benefits. The lack of PACT Act 
expertise at the Board not only denies justice to our veterans but also 
burdens the adjudication system with avoidable appeals and re-
examinations. It further harms VA's mission by eroding the trust 
veterans place in VA to adjudicate their claims fairly and capably.
    Insufficiently trained attorneys are more likely to require 
additional time to research and understand the new law, leading to 
delays in claim processing and a backlog of cases. This inefficiency 
further delays veterans' access to benefits. Faced with the challenge 
of applying complex legal changes with minimal training, attorneys may 
experience moral and professional dilemmas, contributing to the already 
noted issues of low morale, burnout, and high attrition at the Board.
    It is imperative that the Board revises its training protocols 
either on its own or through a statutory mandate, ensuring that our 
attorneys are not only well-versed in the intricacies of new 
legislation but are also fully prepared to uphold the rights and 
entitlements of our veteran population. When doing so, the Board should 
also solicit the opinions of Local 17 attorneys who have already 
showcased an effective training program. Our veterans deserve no less 
than our best and most informed efforts.

Workload and Performance

    In examining the workload and performance of Board attorneys, it is 
critical to understand the continually evolving quotas and performance 
metrics Board attorneys face, the obstacles outside of attorneys' 
control and the differences between ``Legacy Claims'' and Appeals 
Modernization Act (AMA) claims, including new PACT Act claims.
    The Board has made significant changes over the past several years 
regarding the number of cases and issues a Board attorney must complete 
annually. Prior to the implementation of the AMA, Board attorneys were 
expected to complete 125 cases a year, a pace that averaged 2.4 cases 
per week. Each case, regardless of the number of issues decided, 
carried the same weight toward an attorney's production quota. In FY 
2018, the Board increased its production standards from 125 to 169 
cases per annum, (or 3.25 cases per week), a 35 percent increase in 
production requirements which was overwhelming for Board attorneys. In 
FY 2019, the Board created an alternative measure or track of 
production for Board attorneys which evaluated the total number of 
issues decided by an attorney, regardless of the number of cases 
completed, setting that number at 510 issues decided. AFGE supports the 
creation of this alternative metric, as it better accounts for the 
amount of work required to complete each case. However, we caution that 
measuring the number of issues can also be manipulated to create unfair 
metrics. Unfortunately, this manipulation appeared in FY 2020, the 
first full year the AMA was fully implemented, because while the case 
quota remained at 169, the issue quota was raised to 566. In FY 2021, 
the quota was changed to a more manageable but still very difficult 156 
cases or 491 issues. This has remained the same through FY 2024, though 
upper management has actively discouraged attorneys from taking the 
``issues track'' toward completion of the annual quota.
    AFGE members and Board attorneys are not afraid of the hard work 
necessary to satisfy the mission of serving veterans. However, 
extraordinarily challenging metrics make it more difficult to meet 
standards, setting attorneys up for failure or forcing them to cut 
corners in order to meet their production goals. Chairman Jaime 
Areizaga-Soto recently announced that the Board-wide quota would be 
increasing from 103,000 appeals annually to 111,000. AFGE strongly 
urges the Board to lower the quota to allow sufficient time for 
required de novo review of claims files and issuance of quality 
decisions. The Board should in parallel continue to hire more attorneys 
to meet the increased production goal. AFGE truly fears that if the 
current quota remains, many hardworking and successful attorneys will 
continue to leave the Board either from overwork, inability to meet the 
quota, or discomfort with being forced to cut corners. Because of this, 
AFGE also urges this committee to request a Government Accountability 
Office study on the production standards of Board attorneys to 
determine what is feasible while retaining high quality standards.
    Last, beyond the issues surrounding production quotas there are 
other concerns that should be examined by the DAMA Subcommittee. The 
first is the requirement that an attorney may only receive credit for a 
case once a VLJ signs off on the work. While in theory this may sound 
like a plausible requirement, considering the amount of work and burden 
already placed upon VLJs, this can severely hinder an attorney's 
ability to timely reach his or her quota. These delays are entirely out 
of the attorney's control but can prevent an attorney from meeting his/
her quota, qualifying for within grade increases, or meeting 
requirements for overtime eligibility. Holding attorneys accountable 
for VLJ-caused delays violates Article 27, Section 8, Subsection E of 
AFGE's collective bargaining agreement with the VA, which states ``When 
evaluating performance, the Department shall not hold employees 
accountable for factors which affect performance that are beyond the 
control of the employee.'' This requirement that credit can be assigned 
only after VLJ signature is arbitrary and should be adjusted.
    In summary, AFGE members believe that making straightforward 
changes to Board attorneys' compensation, promotion opportunities, 
training, and performance measures - together with setting minimum 
experience levels for VLJs - will greatly benefit the productivity and 
effectiveness of the Board of Veterans' Appeals. Thank you for giving 
me the opportunity to testify at today's hearing. I look forward to 
answering any questions you may have.

                       Statements for the Record

                              ----------                              


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


                                 [all]