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May 23, 2007
Special Court of Appeals for Veteran Claims
This AP article, Judge Warns of Disability Appeal Backlog, describes the growing problems at the U.S. Court of Appeals for Veteran Claims, a special 7-judge tribunal that hears disability appeals from the VA. The number of appeals has doubled in the last two years, as the government becomes increasingly resistant to paying disability benefits for veterans.
The crisis with veteran's benefits (and the related backlog in claims) seemed unsurprising to me given that we have ongoing armed conflicts in Iraq and Afghanistan. I was a bit surprised, however, to see the reversal rate (much higher than I remember its counterpart at the SSA having), which indicates a non-deferential review board, at the same time as an incredibly high remand rate (very deferential, and imposing delays on petitioners) - perhaps evidence of excessive bureaucratic cautiousness? Here are the numbers:
Some two-thirds of the VA's initial decisions are typically found to be in error by the court, but rather than overturning the decision and ordering payment of benefits, the court usually sends the appeal back to the VA to take a second look, Lawrence said. Only in limited cases, after a ruling is deemed final, can a veteran appeal a ruling of the veterans court to the U.S. Court of Appeals for the Federal Circuit or the Supreme Court.
-Dru Stevenson
May 23, 2007 in Agency Decisionmaking, Agency News, Practitioner Concerns | Permalink
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Comments
Yes, the Veterans Court does have both an astounding rate of finding error in the decisions of the Board of Veterans' Appeals and an astounding rate of remanding for a "do over" instead of reversing or affirming.
One might infer that such a dramatic rate of finding error suggests that the court tilts in favor of veteran-appellants, but no such bias is evident. There are other causes: (A) The decisionmaking by the VA's Board of Veterans' Appeals (the forum below) is deplorable, and (B) the law of veterans benefits is complicated beyond imagination, often by the ways in which VA bureaucrats misunderstand it, evidently a result of the passage of "acquired wisdom" and formation of an institutional culture which still pretends that it is isolated from judicial review and unaccountable.
The high rate of remands results in part from deference, though the deference is rarely overt. The Vets Court was probably "captured" by the agency early in its history because it sought staff from VA lawyers. The original judges (which included ex VA general counsels!) have mostly departed, replaced rather suddenly a couple years ago by the "New Majority," and the new judges are still sorting out their thoughts. Judicial philosophy is complicated by the organic statute, which presently forecloses fact-finding on appeal. That tends to make it impossible in most cases to find error, reverse, and order award of the benefit sought. That leaves remands as the only remedy available in most cases.
The cause of the present backlog at the court is little related to the present conflicts in Iraq and Afghanistan. Veterans of those conflicts are not conspicuous in the cases being decided. Neither are veterans of the earlier Iraq conflict or the Bosnian peacekeeping, though I had had a clientr from each of them. Someday those veterans will be quite conspicuous because they seem to be developing different attitudes toward the VA. But, for the present, the disappointed claimants who served in recent conflicts are still detained by the VA's woefully slow administrative process.
Instead, I suspect that the present backlog at the Vets Court is the result of converging factors: Decades of remands produce an eternal stream of appellants returning to the Vets Court because they didn't get what they wanted during the remand or the process to which they are entitled; batches of cases stayed pending the results in "lead cases" on particular issues burst free unpredictably; vet-claimants are less willing to hear "No!" from the VA than they were in the past; the VA's appellate board (the Board of Veterans' Appeals) has recently begun to deny relief in a larger portion of its cases than in the past.
This is an area which would benefit from well informed attention from academics. Professor Fox wrote the book on the early years, but it is no longer maintained. Professors O'Reilly & Levy have contributed, but not recently.
But it is not easy to become competent to comment. The bar of veterans' lawyers is quite small, between 100-200 nationwide plus another 100 or so employed by the VA, I'd guess. The fundamental principles of VA benefits law are so completely counter-intuitive that everyone who deals with them risks inadvertent mistakes in such ordinary things as thinking about evidence and assigning burdens. Of course, there is a bewildering spectrum of different benefits, an ever-changing backdrop of regulations, and the occasional discovery of elephants in the living room. It is no subject to be taken lightly.
Richard R. James
Posted by: Richard James | May 27, 2007 8:00:05 AM
