claims that have gone to Salt Lake City in the last 6 months, the average number of issues is 10.2. These are people retiring and people being discharged from the service.

Chairman CRAIG. So what can I draw from that? Is that 800,000 number a true measure of your workload? Or is that a measurement of the number of claims? That does not therefore represent individuals?

Adm. COPPER. That is correct.

Chairman CRAIG. Is that correct?

Adm. COPPER. It represents individuals. It doesn't represent the true work

Chairman CRAIG. All right.

Adm. COOPER [continuing]. Because each individual will have "X"-number of issues, and each issue has to be adjudicated with a concomitant medical exam and gathered of information. So I would like to be able to measure my workload based on the number of issues that we are adjudicating rather than the number of individual veterans' claim.

If a veteran claims five disabilities, and we say "Yes" on two of them and "No" on three of them have we favorably considered the claim, or have we negatively considered the claim? There are lots of ramifications depending on how you answer this.

We expect 800,000 claims to come in this year. Right now our pending workload is just under 340,000. I think, a standard inventory on hand should be about 250,000. I think 250,000 is a good inventory for the number of people I have. The "backlog" I consider the amount above the 250,000 or currently, 80,000 to 90,000. That is what I am trying to eliminate.

I think we would have a better handle on the actual workload if we counted issues. And I don't know quite how to do that yet, but I hope to do that sometime during my tenure at VA.

Chairman CRAIG. Thank you.

Senator Akaka, additional questions?

Senator AKAKA. Thank you, Mr. Chairman. The Government Accountability Office recommended that the Secretary develop a plan to be included in the Department of Veterans' Affairs annual performance plan, that describes how VA intends to use data from the Rating Board Automation 2000.

GAO also recommended that VA conduct studies of impairments for which RBA 2000 data reveal inconsistencies among VA regional offices. GAO states that one year of RBA 2000 data would suffice before conducting this study.

Admiral, can you please tell the Committee if the Secretary has developed such a plan?

Adm. COPPER. We have a plan. RBA 2000 is one of our IT systems that has been under development for the last 3 years. About 6 months ago, I said that from now on, everybody will use RBA 2000 to adjudicate a claim. So we are all now using it.

GAO feels that we have no effective way to measure consistency. However, we feel with the extra capability of RBA 2000, we can better determine how to assess consistency, and will.

We are working the plan now. We still have to gather a good bit of data before I can determine just how well we are doing. But, yes, we are proceeding down that road.

Senator AKAKA. According to the recent VA Inspector General report, veterans who are represented by a veterans service organization receive an average of $6,225 more in compensation per year than those without representation. What can we do to ensure that all veterans submitting a disability claim receive appropriate compensation, regardless of whether they have representation or not? Adm. COPPER. We absolutely should do that. But, let me say first that I believe we are talking about figures over a period of 50 to 60 years. I think when we consider just the last couple of years, the difference is about $1,700.

I would say to you, we have very competent VSOS out there, and obviously they know the system very well. And if the veteran has a valid claim, they will help that veteran get all the records and evidence that he needs to help us adjudicate the claim. It is not that we don't want to do everything we can for the veteran, and we are required by the VCAA law to do so. But veterans service organizations are extremely competent and good in helping the veteran understand what needs to be done.

My personal goal is to continue to work very closely with VSOS and ensure that we do give the veteran everything that he de

serves.

Senator AKAKA. Admiral, can you explain BVA and its system for docketing cases? I can understand that BVA generally decides appeals in the order in which they are received from VA regional offices. When a case is received from a regional office, it is given a docket number.

If that case is later appealed to the Court of Appeals for Veterans' Claims and remanded back to the BVA, it appears that BVA issues a new docket number, and that veteran goes to the back of the line at BVA, rather than retaining its earlier docket number and receiving near immediate review. This can add as much as 3 to 5 years to the veteran's claim being resolved.

My question to you is, do you support remanded cases retaining their original docket numbers in order to reduce lengthy waits for final decisions?

Adm. COPPER. Senator, I would like to ask my friend, Mr. Garvin, to address that question from BVA.

Mr. Garvin. Yes, sir. And there is a procedure, when a case is remanded back to the Board, where a motion may be entered to have that case retain its original docket number. And perhaps what we need to look at is our educational program, so that we ensure that both the applicants and the VSOs are aware of that.

Senator AKAKA. Well, I want to thank Mr. Garvin and Mr. Epley for their responses, and especially Admiral Cooper. Thank you very much.

Adm. COPPER. Thank you, sir.

Chairman CRAIG. Danny, thank you.

Richard, do you have any further questions?

Senator BURR. Mr. Chairman, just one, with Mr. Garvin's last answer. Why would it get a new number? Take for granted all of them get new numbers if they are coming back through the system, if there is an appeal, a further appeal? Is that what you are saying?

Mr. Garvin. When a case comes to the Board, it is assigned a docket number. And it is assigned a docket number in accordance with when it is certified ready for the Board to take action on the appeal.

Senator BURR. Is there anybody that wouldn't want their concern heard quickly?

Mr. Garvin. I doubt it.

Senator BURR. But not all of them request the current docket number to remain?

Mr. Garvin. That is correct. We will take look at that.

Senator BURR. Thank you.

Mr. Garvin. Yes, sir.

Chairman CRAIG. Admiral, thank you very much. Mr. Epley, Mr. Garvin, thank you for your testimony.

Adm. COPPER. Thank you.

Chairman CRAIG. Before you leave, a bit of admonishment, if I can, and it is about the 48-hour rule on testimony that we are striving to achieve with all of you. And I say that because the agency was notified of this hearing more than 3 weeks ago, and the Secretary received notice 2 weeks ago. Your testimony arrived last night at 5:45. It is very difficult at that point for my staff to effectively review it and prepare us for the hearing held this afternoon. They spent into the night, working on that testimony.

So I guess I am sending what I hope is a clear message. Because we will have a good many more hearings over the course of the next couple of years, working cooperatively with you and other divisions of the Veterans' Affairs, to respond to our veterans. And timeliness is critical and important for us to be effective and to prepare. And I would hope you would take that back with you, Admiral, to your colleagues.

Adm. COPPER. I sincerely apologize.

Chairman CRAIG. Thank you. Thank you very much for being

here.

Now let me invite our second panel forward, please. The Committee has looked forward to this panel, because it presents us with a broad array of experience in the area that we are focusing on today.

And first, we will lead with the Honorable Kenneth B. Kramer, former Chief Judge for the U.S. Court of Appeals for Veterans' Claims, and a former colleague of mine in the U.S. House a good number of years ago.

Judge Kramer, we are pleased to have you before the Committee. Please proceed.

STATEMENT OF HON. KENNETH B. KRAMER, FORMER CHIEF JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS Mr. KRAMER. Mr. Chairman, Ranking Member Akaka, Senator Burr, it is an honor for me to be here with some old friends. Senator Akaka, I brought my wife here, who was born in Hawaii, for assistance, so I may call on her if I get in trouble.

My testimony is going to be centered around my personal observations as a judge for 15 years. I didn't do a huge amount of research, and I don't have a lot of statistics. It is just things that

have been embedded in my mind over the years. And I want to make it clear that I speak only for myself, and not for the court.

I have three major recommendations that I am going to make to fix one of the largest, if not the largest problem of all, as I see it in the adjudication system. And that is the constant, never-ending cycle of remands back and forth, passing of papers, among four levels of decisionmakers. These levels are the regional office; the Board of Veterans' Appeals; our court, which is the U.S. Court of Appeals for Veterans' Claims; and another Federal appellate court, the U.S. Court of Appeals for the Federal Circuit.

What I am going to suggest are not perfect solutions. But I see them as possible starting points to addressing the backlog problem. My first suggestion is very specific. And that is to amend 38 U.S.C. §5103A(2)(d)(B)—to make it crystal clear when a claimant is entitled to a VA medical opinion, which will address the causative relationship between present disability and military service.

This issue is by far the most critical in most compensation and cause of death cases. And I believe that obtaining such an opinion at the earliest possible time will save huge amounts of work, litigation, and time.

I would suggest that the Committee consider providing for such an opinion when the following factors are present: there is evidence of both present disability or death and a possible causative event in service; there has been a denial of the claim based on no nexus evidence; and a notice of disagreement has been filed to this denial. My second and third recommendations are a little more systemic and a little more general. I believe that the time has come to decentralize high-level VA decisionmaking, so as to require a formal administrative law decision at the RO level-that is, the local level-before an appeal can ever be brought to the Board, and then only after a claimant has gone back to the administrative law judge with a proper motion either averring specific errors in that administrative law judge decision, or showing that the claimant can offer evidence that might affect the result.

Before rendering an initial decision, the ALJ would be required to ensure that VA's duty to assist has been carried out. If the initial decision was adverse, the claimant would be permitted to hire counsel to file the motion with the ALJ or, if that failed, to appeal to the Board. That appeal also would have to specify specific errors in the ALJ decision, not just a general disagreement with the result, as is presently the case today.

My third recommendation goes solely only to judicial review. I believe that independent judicial review has made a huge difference in the quality of VA decisionmaking. Now decisions are based on evidence of record, and they must be analyzed. And the decisions that the VA produces are far better today than they were when I first became a judge.

That said, I believe, personally, that judicial review is a real part of the problem in finalizing claims. Under existing law, there are four levels-four of possible appellate appeal: an administrative appeal to the Board, to the BVA; and three levels of judicial appeal, to our court, to the Federal Circuit, and possibly to the Supreme Court.

I recommend that the Federal Circuit be removed from this process. Our court is the real expert in veterans law, not because the caliber of its people are better in any way than the Federal Circuit, which has the highest quality of people, but simply because the work of our court is full-time in the veterans area; while the Federal Circuit's work is part-time, its main thrust being intellectual property law.

The Federal Circuit was originally put into the process when the court was created because of fears that the veterans court, as an Article I court, might be captured by its constituents, and that Article III review by the Federal Circuit would ensure that didn't happen.

With 15 years of decisionmaking under the belt, those fears, I believe, have never materialized. Although one could argue that it is good to give a party which has lost at the court, my court-and that is either a claimant or the Government-one more bite at the apple, the further delay-which means about 2 more years of time before the Federal Circuit will render an opinion and, if that case is remanded back to our court, at least an additional year of time— and the confusion that results from inconsistent court decisions, simply provides more justice than the system can bear. I truly believe that justice delayed is justice denied.

The organic law of the only other Article I appellate court, the U.S. Court of Appeals for the Armed Forces, has provided for direct appeal from it to the Supreme Court for more than half a century.

Í further recommend that our court's organic law be changed, so that where a fully-developed evidentiary record clearly reflects entitlement to a benefit or clearly reflects a claimant's inability to succeed, in spite of otherwise remandable BVA error, that the court should end the matter with either a benefit award or an affirmance based on non-prejudicial BVA error.

Thank you for the opportunity to be heard. If I can be of further assistance in providing our veterans with the best justice system possible, I stand ready to help in any way I can. [The prepared statement of Mr. Kramer follows:]

PREPARED STATEMENT HON. KENNETH B. KRAMER, FORMER CHIEF JUDGE,
U.S. COURT OF APPEALS FOR VETERANS CLAIMS

Mr. Chairman, Ranking Member Akaka, and Members of the Committee: It is an honor to be asked to provide my thoughts as to how the VA claims adjudication and appeal process might be able to provide more timely and accurate decisions. My suggestions are based upon my personal observations growing out of a career in which I have had the privilege of serving first in the military and then as a civilian in all three branches of the Federal Government. The last 15 years of my service was as a Judge of the U.S. Court of Appeals for Veterans' Claims (Court), the last four of which was as Chief Judge, the position from which I retired last fall.

As preliminary matters, I want to make sure that it is understood that I speak only for myself, not for the Court, and that my remarks are not in any way meant to be critical of any individual or institution but only directed to what I see are systemic problems that no individual or institution could remedy without statutory changes. I also want to make sure that it is understood that I do not pretend to offer perfect solutions, only starting points to fixing the major problem as I see it— the almost never-ending cycles of both Board of Veterans' Appeals (BVA) and Court ordered remands in far too many cases. These remands clog the system and prevent timely justice for all claimants, those who are trapped in the remands themselves and those who wait for those who are trapped. Lastly, I congratulate the Committee for its willingness to begin to take on the challenge of changing a system that has