Mr. KOWALCZYK. Thank you, Rick.

Mr. Chairman, it's a personal privilege for me to appear before you today and report on the activities that the DAV has been involved in at the United States Court of Veterans Appeals over this past year.

The Court of Veterans Appeals, we have found, is very receptive to the needs of this Nation's veterans, and I would like to compliment Chief Judge Nebeker for the courtesy he has shown to these veterans.

We have been having considerable difficulty with the General Counsel in our dealings at the Court, and, as the major practitioner before the Court, the DAV feels it's in a position to report these problems to you. One of the problems is that the Court is currently faced with a pro se calendar of approximately 59 percent of its total docket. The General Counsel requires that, in order for us to review a claims file to determine if we can offer representation to veterans, the claimant first file an appeal pro se. This is totally unnecessary and, of course, it inflates the Court's docket.

Another problem we recently ran into, Mr. Chairman, is the General Counsel taking cases that we brief before the Court and referring those cases to the Board of Veterans Appeals for reconsideration. They have done this without notifying the Court or the DAV of the action, and this, of course, is causing considerable difficulty.

I believe that concludes the comments that I have.

[The joint statement of Richard F. Schultz and Edward J. Kowalczyk appears at p. 128.]

Mr. McEwEN. Ed, can you repeat that last sentence? They did what?

Mr. KOWALCZYK. We have briefed cases, and they have sent those cases, without notifying the Court and without notifying us, to the Board of Veterans Appeals for the purpose of reconsideration.

We have filed an injunction with the Court on this matter, and I'm sure we will be hearing on it one way or another. I thought it was worth mentioning at this point because, if it is not resolved to the satisfaction of the DAV and, of course, the claimant, it may have to come before this committee for resolution.

Mr. PENNY. Mr. Manhan.

STATEMENT OF ROBERT D. MANHAN, SPECIAL ASSISTANT, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES

Mr. MANHAN. Thank you very much, Mr. Chairman. It is a pleasure to be here this morning.

After listening to the highlights of the statements from the representatives from PVA and DAV, I will try to briefly outline only those issues where the VFW's statement differs.

We looked at the total workload of the BVA over the last 23 months, which would include all of fiscal year 1988 through the first 11 months of fiscal year 1990, and we noticed a total of 37 percent of all of the cases that BVA handled were either approved or remanded to the regional offices. Based on that factor, plus all of the discussion regarding timeliness, it led us to provide our only

conclusion to this oversight hearing. It is simply that we think the Secretary of the VA must give a very high priority to the issue of improviding timeliness of all claims within his organization.

We thought historically that the VA's Appeal Records Management System, the acronym VARMS, was to have addressed this problem several years ago. And over the past years, during hearings we always get pieces of how VARMS is being automated and updated. But there is still a significant problem of overall poor response time that the VFW believes is beyond the scope and responsibility of BVA itself to resolve.

Now, just briefly touching on how the VFW perceives COVA to be operating, we have had a bit of a problem obtaining the C-files of veterans who would like us to represent them before COVA. Mechanically, the General Counsel of VA requires us—and I'm sure all of the veterans service organizations—to accept the case before we have the opportunity to review the entire C-file to determine the merits of the issues. We think that that probably works against the entire system.

Thank you, Mr. Chairman. That summarizes our statement.

[The prepared statement of Robert Manhan appears at p. 136.] Mr. PENNY. Mr. Wilkerson.

STATEMENT OF PHILIP R. WILKERSON, ASSISTANT DIRECTOR, NATIONAL VETERANS AFFAIRS AND REHABILITATION COMMISSION, THE AMERICAN LEGION

Mr. WILKERSON. Thank you, Mr. Chairman. The American Legion appreciates this opportunity to comment on the current operations of the Board of Appeals.

The requirements of Public Law 100-687 providing for judicial review as well as additional due process procedures, together with more recent legislation, have had, in our opinion, a significant effect on the ability of current staffing at the regional offices and the Board to handle the pending workload in a timely manner.

In contrast to the steady increase in processing times of benefit claims in the regional offices, which were the subject of a hearing conducted by this subcommittee earlier this year, the number of days to complete the overall processing of an appeal at the regional office level has not increased as drastically.

One of the major improvements in the adjudication and appeals process has been the hearing officer program. We believe it has been successful in providing veterans an impartial hearing at the regional office, with favorable resolution of many claims. Additionally, such hearings help ensure the inclusion of information and evidence the claimant deems important to eventual consideration by the Board and possibly COVA.

Over the last 3 years, the remand rate has risen from 18.8 percent to 23.6 percent. We believe this increasing rate reflects not only the Board's concern for the issue of due process and the need for further development of cases by the regional office, but also highlights the deterioration and the quality of basic adjudicative actions caused by inadequate staffing and training and the effects of an emphasis on productivity.

Over the last several years, The Legion has become increasingly concerned by the amount of time to complete an appeal. Even before the enactment of Public Law 100-687 and judicial review, elapsed processing time had begun to increase dramatically. This went from 106 days in fiscal year 1986 to a 192 days currently, with over 22,000 appeals pending.

We also feel the lack of a medical advisory staff may affect the quality of the Board's decisions. Staffing for medical advisers has gone from six FTEE in fiscal year 1986 to one at present, and he is only part time. Many of the cases coming before the Board involve complex medical issues and, with such minimum staffing support, we believe the Board may not have the necessary medical advise readily available to assist in deciding such complex cases. Moreover, there appears to be a significant decline in referrals to independent medical experts and the Armed Forces Institute of Pathology over the last several years. We feel very strongly that veterans should be confident that the Board will undertake any necessary action by way of development, including obtaining such advisory opinions to assure the fullest possible consideration of their appeal. Despite the foregoing problems, the Board reports in recent months it has been able to make significant improvements in productivity, and we believe they are to be commended for their ef forts. The American Legion, however, is at the same time concerned that this increased productivity may have come at the expense of quality in the decision-making process. We have found that some sections of the decisional document are often abbreviated and it's difficult to determine the basis for the Board's decision. In addition, because of the shortage of Board members, some decisions are signed by only two-member panels. We do not believe these practices are in the best interest of the appellant.

In conclusion, we feel there is an urgent need for additional staffing support at both the regional office and at the Board to ensure that appellants receive full due process and a full and fair consideration of their appeals in a timely manner.

Thank concludes our statement, Mr. Chairman.

[The prepared statement of Philip R. Wilkerson appears at p. 143.]

Mr. PENNY. Thank you.

I'm going to start with you, Mr. Wilkerson. How do you reconcile your enthusiasm for a single signature decision by a hearing officer at the regional level and your unhappiness with the two-member decision at the Board of Appeals?

Mr. WILKERSON. I believe that raises an issue which I am just not prepared at this time to respond to directly, but I would be glad to give it some consideration and provide a written response.

Mr. PENNY. Well, it would be helpful to us. If the value of three members participating in the review supposedly adds to the quality of the decision, the thoroughness of the process, that procedure at the regional level in which you can get a hearing officer involved to take another look at a case seems to move us in the other direction. It indicates that we're allowing an individual judgment to overrule a judgment that's been made by a larger panel. I'm not saying the hearing process isn't appropriate, but it does seem to be a contradiction.

All in all, we have seen these delays at the regional office. We assume some of it has to do with staffing, et cetera. It might have to do with increased claims being filed. But if we're going to process these claims, the related issue is how to prioritize those claims, if some claims are going to wait longer than others. Are there some that ought to be treated on a priority basis, or should we just take them first come/first served, regardless of what type of claim it is, and work down the stack? How would each of your organizations propose that we prioritize claims, keeping in mind some are for death benefits and some are for initial compensation, and others are for appeals on levels of compensation, et cetera. Do you have some suggestions for us?

Mr. SCHULTZ. Mr. Chairman, currently I know at regional offices we have been successful in having certain cases heard earlier where an individual has a terminal illness or where there's a problem for one reason or another, that a claim need to be expedited. I think one of the problems also, as pointed out by Mr. McEwen, is the fact that there is really no standards set right now for handling claims or appeals. I think they need to take a good look at this issue. I believe maybe there should be some good healthy debate over that very issue that you raise today. Together with the Congress and service organizations and the VA, maybe we can come up with a better system to expedite these claims and to put some priorities on them. Hopefully, the overall system will benefit from that.

Mr. PENNY. Anyone else?

Mr. BOLLINGER. Mr. Chairman, I, too, would have to agree. I think guidelines should be set and some standards should be set in terms of what types of claims should take priority. We haven't thought about this too deeply, but certainly compensation and pension claims would take priority over education claims and, I would say right now, death claims. I think there would be certain instances where certainly, in the event of a terminal illness or some situation that would demand quick action, I think that could be worked out easily through the regional office. But certainly guidelines have got to be set.

Mr. MANHAN. Mr. Chairman, the VFW would like to respond as one of the major service organizations. Trying to balance the philosophic question of equity and propriety, we would prefer the first come/first served way of doing business. We don't want to introduce another level of valuation or judgment as to which claim is more sensitive because every case to every veteran is important. That's the way we would like to handle it. We know at the BVA level they do specialize. PTSD cases, for example, go to a certain team, ionization cases to another. So when they come back to us again, they are date stamped and we'll process them along that way.

Thank you.

Mr. WILKERSON. I would like to comment, Mr. Chairman, that I don't believe it would be appropriate to prioritize all cases, recognizing that there are truly certain needy situations require special handling. I think certainly those provisions are appropriate to the overall claims process. Each individual controls when he submits

his own claim and is certainly entitled to the benefit once it has proceeded through the administrative process.

Mr. PENNY. Thank you.

I have one last question of Mr. Kowalczyk. I'm not an attorney, which places me in the minority here in Congress, so I am not familiar with the court process. But you mentioned your concern that the General Counsel at the Court of Appeals, on his own initiative, can refer certain cases back to the Board.

In a district court system, or a county court system somewhere in the country, would the normal procedure be that if an appeal were made from that level to an appellate court, that if it's going to be referred back to the district court or the county court for a reconsideration, that it would either have to be done by the judge at the appellate court or through kind of a joint decision of the prosecuting and defense attorneys? They can then request the Court to refer it back?

It does sound like an unusual process to me, in which one party to the dispute would be able to make that judgment without the concurrence of the other participant.

Mr. KOWALCZYK. First of all, let me state that we share a common bond; I'm not an attorney, either. I think you pretty well have paraphrased what is happening. If I might, I will take you through the process up until that point.

The veteran, at the time he receives his initial Board of Veterans Appeals decision, has a number of options available to him. He can request reconsideration at the Board of Veterans Appeals at that juncture, or, with the enactment of the Judicial Review Act, he can now take the case to the United States Court of Veterans Appeals. In the cases that I'm talking about, the veteran has made that choice and he has filed his appeal with the United States Court of Veterans Appeals and has gone through the process, which is a lengthy process, to the point of briefing.

The General Counsel for the Secretary, Department of Veterans Affairs, has recently referred at least six of our cases-and these are DAV cases-that have been briefed to the Board of Veterans Appeals for the purpose of reconsideration without notifying the Court or the representative of the DAV. The problem, of course, is we don't think the Board of Veterans Appeals can divest the Court of its own jurisdiction. The appeal is properly filed with the Court of Veterans Appeals. The Chairman of the Board of Veterans Appeals, upon accepting the reconsideration, vacates the prior decision. That's the decision the veteran was appealing to the Court. This creates a realm of problems. The Board of Veterans Appeals tells the veteran that, after it reaches its decision on reconsideration, the veteran then has 120 days from the date of that decision to appeal to the Court. If the only final decision to be appealed to the United States Court of Veterans Appeals is the decision on reconsideration, one of the problems is, what do we do with the 1,100 or so cases that are pending at the Court right now based upon an original Board of Veterans Appeals decision.

In one of the cases that was sent over without our knowledge to the Board of Veterans Appeals for reconsideration, for example, the DAV did not hold the power of attorney with the Department of Veterans Affairs. That case was sent back to the organization of