Bart Stichman, co-founder and joint executive director of NVLSP, offers testimony on behalf of NVLSP on the veterans appeals process and offers five recommendations for Congress to improve the system.
The backlog of claims appeals has been continually growing at the VA. The time it takes from the filing of the initial appeal document – the Notice of Disagreement (NOD) -- to the issuance of an initial Board of Veterans’ Appeal (BVA) decision is exceedingly long -- 1,255 days in FY 2013 (that is, more than 3 years and 5 months) according to the BVA Chairman.
The time it takes for a final decision to be made on a claim is often much longer because the initial BVA decision often results in a remand of the case to the regional office. Over the last four fiscal years, more than 44% of the appeals to the BVA have resulted in a BVA remand to the Appeals Management Center (AMC) or the RO for additional development. Moreover, the Court of Appeals for Veterans Claims has set aside and remanded 76% of the BVA decisions that have been appealed by a VA claimant to the CAVC and over which the CAVC has had jurisdiction.
Part of the reason that the VA appeals process suffers from dysfunction is that there are relatively few objective precedents that guide the ROs and the BVA on the meaning of title 38 statutes and VA regulations. This lack of objective precedents makes it more difficult for claimants and their representatives to understand what type of evidence they should try to obtain to substantiate their claims; increases the time it takes for the adjudicator to reach a decision; and leads to inconsistent decision-making and a greater number of appeals by disappointed veterans.
NVLSP urges Congress to enact the following five reforms to help make the appellate system more efficient and just.
• Authorize BVA to Develop Evidence Itself Without Having to Remand to the AMC or Regional Office
• Provide Veterans Organizations with a Right to Petition the VA General Counsel for a Binding Precedent Opinion on the Proper Interpretation of a Statute or Regulation
• Authorize the Court of Appeals for Veterans Claims to (a) Certify a Case as a Class Action on behalf of Similarly Situated VA Claimants, (b) Require the VA to Stay Proceedings on the Claims of All Similarly Situated Claimants, and (c) Once the Court Finally Decides the Case, Require VA to Apply the Decision to all of the Pending Claims That Were Stayed
• Prohibit The ROs And BVA, In A Case In Which There Is Positive Evidence Supporting the Award Of Benefits, From Developing Negative Evidence Against The Claim Unless The RO or BVA First Explains In Writing Why The Existing Record Is Not Sufficient To Award Benefits
• Require VBA To Change Its Work Credit System for RO Adjudicators So That Raters Do Not Get Work Credit For Denying A Claim Without First Obtaining The Evidence Needed To Comply With The VA Duty To Assist