U.S. Court of Appeals for Veterans Claims 16th Judicial Conference

Thanks so much to everybody. Good morning to you. Thank you for inviting me to join you for your 16th Judicial Conference.

You had me a couple of years ago. The fact that you welcomed me back notwithstanding the intervening time as Secretary I take as a mildly positive sign. We'll see how the reviews are on that at the end of the speech.

Chief Judge [Michael] Allen, thank you so much for the introduction. It's fitting that you've stepped up to Chief Judge during this conference because, as I gather, your introduction to Veterans law for the first time was when you accepted an invitation to speak to this very conference in 2006. And at that conference, you recognized the importance of Veterans law, and so here we are.

Thanks for all you have done for Veterans, even before you joined this Court. You became one of the first professors with expertise in Veterans law, and you founded one of the law school clinics providing pro bono legal access for our nation's heroes. I appreciate that one of your very first actions as Chief Judge was to introduce me just now. And so, I take that very seriously. So, thanks for that. I hope the rest of your tenure is as auspicious.

Judge [Margaret] Bartley, also known as Chief Judge Bartley for the last five years, congratulations. And thank you for your 30 years of service to Veterans. You've worked to ensure that Veterans receive all the benefits and services they've deserved and they have so richly earned, provided them with pro bono representation yourself, clerked for this Court, been appointed as a judge on this Court, and elevated then to Chief Judge. Your service to Veterans, to the national interest, to the country, has been remarkable.

And thanks also to all of you here at this Court, including this Court's other distinguished judges, VA employees from the Board of Veterans Appeals and Office of General Counsel, attorneys representing Veterans before the CAVC [Court of Appeals for Veterans Claims], law professors, law students, and of course Veterans. No matter your role, you all care deeply about our nation's heroes.

One of the benefits of this biannual event is that it brings us all together. It might be on different sides of the table, but each one of us supports Veterans all the time.

Let me begin where this Court began.

During legislative hearings leading to passage of the Veterans' Judicial Review Act in 1988, Sonny Montgomery-then-Chairman of the House Veterans Affairs Committee-said, "Accurate, informal, efficient, and fair. These are the goals which have guided the committee in … expanding judicial review of VA decision-making …. [It is] not intended to express displeasure with the BVA [Board of Veterans' Appeals] method of reviewing claims or imply that the existing review process is unfair."

"To the contrary," he said, "the committee believes that Veterans presently receive every possible consideration where the BVA reviews a case, and the committee expects that the new court will be similarly inclined."

That's quite a statement from the chairman of a Congressional committee. And given that statement, and Chairman Montgomery's observation about "Veterans [receiving] every possible consideration," I've been wondering what he would think of the last few years, years which have seen significant improvements and significant developments in Veterans law.

Two changes in particular have impacted the Veterans law landscape.

First, the Appeals Modernization Act [AMA], implemented in 2019, has improved the appeals process-so far. The AMA has made appeals faster, it's provided Veterans different options for addressing denied claims. But we are still operating in two separate legal systems, with different options for Veterans filing appeals, and thousands of Legacy claims being adjudicated.

Second, President Biden's PACT Act in 2022 greatly expanded VA health care eligibility for toxic-exposed Veterans and extended enhanced eligibility for Vietnam era, Gulf War era, and Post-9/11 combat Vets. We're seeing Veterans file more benefits claims than ever before.

In 2023, VA processed nearly 2 million benefits claims-a record high. So far this year, we've exceeded that by processing more than 2.4 million, with another 10 days left, yet, in the fiscal year, on pace to surpass last year's record by more than 27%. The VBA grant rate for these claims is 64.2%-and as high as 75% for PACT Act claims. In 2024, the average overall disability rating granted to Veterans is 70%, with over $20,000 per year in disability compensation.

Now, I know I've just listed a bunch of stats. Nearly every one of them represents all-time VA highs. But let's remember that behind every one of them is a Veteran and their family receiving life-changing benefits and care.

Now, breaking records is good. But it's not good enough. Because here's the bottom line: we have a lot of work left to do, a lot of improvement. In fact, we need to improve. We must keep Veterans at the heart of everything we do. Part of that involves the appeals process. So, let's talk about what that looks like.

When Veterans aren't satisfied with decisions they've received, they have several recourses under the AMA, as you well know. Over the last three years, the Board of Veterans Appeals has hired more than 50 Veterans Law Judges, hired more than 350 attorneys, and has issued more decisions than ever before.

In 2023, the Board issued 103,245 appeals decisions, again a record. And in 2024, the Board has already issued more than 111,000 decisions-another record again, with 10 days left in the fiscal year-so I don't want any of the BVA personnel or the Board of Appeals team in the room there thinking that you can take the next 10 days off.

The appeal rate to this Court has dipped over the last several years also. And last year, it was 7.4% of cases. However, this year there will still be about 9,000 BVA decisions appealed to this Court. Nine thousand of our nation's heroes who have not received all the benefits they believe they're entitled to, and in fact they believe VA has wrongfully denied them access to.

Nine thousand.

It's long and complicated, and many of appeals don't result in the outcome they desire. But it's not simply the denial of benefits that makes Veterans unhappy. It's the process, which can involve remand after remand and years and years of waiting.

Each week, hundreds of Veterans send me letters. I'd estimate that a third of those express frustration-and let's just say I'm being diplomatic here-frustration with the benefits claims and appeals process. Let me share selections from a few of them.

In June, Travis in North Carolina wrote me: "Dear Secretary McDonough, I am a military Veteran writing to express my deep frustration with the unacceptably long wait times for decisions on VA disability claims. After sacrificing for my country, I now find myself struggling with service-connected disabilities and trapped in a seemingly endless bureaucratic process. This unresolved claim has caused tremendous stress and hardship for myself and my family. We rely on disability compensation not only for income, but for access to VA health care critical for treating my service-connected disability."

Later in June, I received a letter from Chris in California-U.S. Marine, Vietnam, now in his 70s. He described multiple remands from Board judges ordering tests from an orthopedic specialist and x-rays to determine service connection for arthritis. But, Chris wrote, a VA contractor sent him to urgent care, not a specialist, and sent him to an imaging center incapable of conducting x-rays. He's still waiting to see a specialist. He's still waiting for x-rays. Chris ended with, "I am dismayed, disappointed, even appalled that our government and country I was so excited and happy to serve at 17 years of age would treat me this way. Shame on you and on your team."

Shame.

And in August, Deborah in Tennessee, emailed me. Her husband, Army Vet, had a disability compensation rating of 100%. "Since his death in 2022," she wrote, "I've been trying to get widows benefits. I've filed, been rejected, appealed, got a Veterans assistance firm to help, but every time the VA comes up with some sort of excuse, in the hopes I'll give up. I have to borrow money from family members just to pay utilities bills. I fear I'll lose my home. I need help to get through the process. Please help me."

Now, there's countless other Veteran letters I receive that express similar disappointment, heartache, anger, betrayal. So how can we address-alleviate-that frustration that Veterans so clearly express with our appeals process?

Well, we do it by getting to the root of these issues.

The Board of Veterans Appeals grants Veterans relief about one third of the time. One third.

Yes, we have to follow the law, we want to follow the law, we do follow the law. There's no way to wave a wand and grant every single appeal. But too many Veterans-caught in the endless churn of remand after remand, claims examination after examination, hearing after hearing-don't trust the process. We need Veterans to trust us, to trust the appeals process, and to understand why we reach the decisions, even if, in fact particularly when, they walk away disappointed. We-the Board, this Court, private counsel-can gain trust through final decisions, and final decisions that are faster than Veterans get today.

Look, the AMA has enabled us to make the process better, although there is still more to be done. Over the last few years, the Board's AMA decisions result in 20% fewer remands and 10% higher grant rates. On average, final resolution of all issues in AMA cases takes between two to three years, faster than the seven to 10-year average before the passage of the AMA. But still, two to three years is too long.

Here's the reality. Today, Legacy appeals take about six years. That's faster than before, but that's still six years. None of us thinks six years is fast enough. That duration is going to tick up and up, and appeals are going to take longer and longer, because there's 40,000 Legacy cases still at VA.

Each year this Court remands thousands of additional Legacy cases to the Board. At any given time, 54% of the Legacy cases the Board is adjudicating have already been seen by a Board judge at least twice, nearly 30% at least three times, and almost 10% have already been adjudicated five times or more.

Even after the Board resolves all issues, for many Veterans the journey's not over. It can take years to get a decision from this Court or the Federal Circuit. Typically, that decision just returns the case to the Board for further adjudication.

I think we can do better for Veterans. I know some of you are talking about these issues in various settings, including sessions with the Bar Association. And that's encouraging. Yes, it's important to capture ideas and suggestions for change down the road, but let's think about how we can help more Veterans now-improvements that VA, this Court, the private bar can implement sooner rather than later to benefit Vets. Now, none of us is immune here. We can all do better, no matter where we work.

First, the claims examination process. Contractors speeding through compensation and pension exams, or not carrying out clear instructions on what to focus on, or conducting exams rife with inaccuracies. VA can-in fact, must-ensure that these exams are more accurate, with higher quality, leading to more resolved claims. Under Secretary [of Benefits, Josh] Jacobs and his team are working hard to implement quality measures on C&P exams-reducing unnecessary exams where we can so as to get to a decision sooner.

Second, the Board of Veterans Appeals. I've challenged the Board to increase efficiencies. I've asked them to increase capacity, increase output. I've asked them to find ways to fill hearing slots that open up due to cancellations and increase appeal resolution rates so that we can reduce wait times for Veterans. I've also asked the Board to explore how we better inform Veterans of the expected wait times before their appeal will be issued. I know they are discussing these issues, and they're figuring out how to do it. It's not easy. The hiring process, which we've had our foot on the gas on over these last several years-also too slow.

Remands going back and forth between the Board and this Court often aren't productive, in my view. We've heard concerns that sending remanded cases back to the same Board judge may not always be the best way to get finality.

Third, this Court. I ask you to ask yourselves, if we're remanding 75% of appeals back to the Board, are we doing everything we can for Vets? Are we moving with efficiency and urgency? Vets don't want to wait year after year, not knowing whether they'll receive benefits or not. Veterans need timely, fair, final decisions on their claims, decisions that either grant their benefits, or fairly deny those benefits only after proper hearing, proper development, a full consideration of all the evidence developed, and a correct application of law. They don't want to be stuck in legal limbo.

Fourth, private counsel. One of the AMA's improvements is that it gives Veterans options besides filing an appeal with this Court. Consider whether you're always choosing the best option for your client, especially when the Veteran, or their surviving family member, or their living family member, wants a final decision on the claim-and quickly. Is an appeal to this Court the best option for your client when you know there's a strong likelihood of a remand, or even multiple remands, and no resolution for years and years? Or would it be better for the Veteran to file a supplemental claim that can be processed much faster than a remanded appeal?

To everyone, please think about what happens if the system stays the same. Thousands and thousands of Veterans will continue to wait, burdened by what to them is a broken bureaucracy. They will continue to view appeals with disappointment and anger.

What are Veterans doing to make the system work for them? They are turning to unaccredited representatives who call themselves "coaches" or "consultants," charging Vets high amounts or outrageous percentages of future benefits. Veterans turn to these claim sharks because they promise the Veteran they'll get a quicker resolution. And as payment, the Veteran signs over a portion of the benefits that Veteran earned serving our nation. This surely is not what we want.

We have to do better.

We need finality, and we need that finality more quickly. Finality in the appeals process isn't dictated by just one factor or one specific actor. Getting to final decisions-and how we get there-depends on actions and decisions of VA, claimants, their lawyers, and judges. If we want Vets to receive benefits they are entitled to, and for their claims decided fairly and justly-which everyone in this room surely wants-we must focus on finality and achieving finality with urgency.

Let's consider how we make the system better for Vets. Talk about this with each other during your time here and after you leave. Because what everyone wants, I know, is for Veterans to receive all the benefits they have earned, accurately, quickly, fairly-the goals Chairman Montgomery hoped this Court would achieve.

The President often says that our nation's only sacred obligation is to prepare and equip the troops we send into harm's way, and to care for them and their families when they come home. The second part of that solemn duty is VA's to fulfill, each and every day. And in this instance, it's not on VA alone. It's on each of us here. Each decision at VBA, the Board, this Court, and counsel appearing before this Court has an impact on the Veteran. And often, the impact on a Veteran, their families, and survivors is, in fact, life changing.

Remember, justice delayed is justice denied. Veterans did not hesitate to raise their hands and put their lives on the line for all of us. They didn't say wait. So, let's not make them wait one second longer than they have to for their hard-earned benefits.

It's on all of us to make that happen.

Thanks for letting me be here today with you, and now let's hear from you on your questions.

Really appreciate you.

Chief Judge, back to you.

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