Joint Hearing of the Committee on Homeland Security and Governmental Affairs of the U.S. Senate and the Committee on Veterans’ Affairs of the U.S. House of Representatives at 1:00 p.m. CDT.
Submission For The Record of Michael P. Allen, Professor, Stetson University College of Law
Chairman Runyan, Ranking Member Titus, and Members of the Subcommittee:
Thank you for the invitation to submit this Statement in connection with the Subcommittee’s hearing concerning: “Why Are Veterans Waiting Years on Appeal?: A Review of the Post-Decision Process for Appealed Veterans’ Disability Benefits Claims.” It is a distinct honor to have been asked to provide some views about this incredibly important issue for the men and women who have answered the call to serve the nation.
I am a Professor of Law at Stetson University College of Law in Gulfport, Florida. In addition to serving as a full-time faculty member, I am also Stetson’s Associate Dean for Faculty Development and Strategic Initiatives and the Director of the College of Law’s Veterans Law Institute. For the past eight years, I have had the pleasure of studying the existing system for reviewing veterans’ benefits determinations at both the administrative and the judicial levels. In addition to teaching in the area, I have had the pleasure of testifying before the United States Senate Committee on Veterans’ Affairs, participating in the House of Representatives Veterans’ Affairs “Claims Summit: 2010,” speaking to four judicial conferences of the United States Court of Appeals for Veterans Claims, participating in the judicial conference of the United States Court of Appeals for the Federal Circuit, and addressing numerous veterans groups across the country. I have also written a number of scholarly articles concerning veterans law.
I applaud the Subcommittee for addressing the serious issues that are implicated by the delays associated with the review of veterans’ benefits decisions. There is no question that veterans and other claimants face significant delays in the review of decisions denying their claims. Such delays have real world effects on people’s lives and also run the risk of undermining public confidence in the system as a whole. Anyone familiar with this area of law and policy has heard about the “hamster wheel” on which many veterans find themselves. While the term specifically refers to the process by which veterans’ claims bounce from one level of the system to another and back again though a series of remands, for now my point is more generic. Any system in which a common visual metaphor is of someone trapped in a mechanism in which they run and run but go nowhere is a system that has a serious problem to address. Fundamentally that is what the Subcommittee is addressing and it is unquestionably important.
There are many groups and individuals who have intimate knowledge of the working of the system by which benefits are awarded and reviews of denials are accomplished. Representatives of the United States Department of Veterans Affairs (VA), the Board of Veterans’ Appeals (Board), Veterans Service Organizations, and the private bar representing claimants all bring expertise to the table about the issue on which the Subcommittee is focused. I do not pretend to hold myself out as having the “on-the-ground” level of knowledge as these groups and individuals have. I have no doubt that their statements to the Subcommittee will provide useful assessments and suggestions.
To be clear, my goal is not to duplicate the insights of the various groups I have highlighted above. Rather, I seek to provide a broader perspective on some of the systemic causes of delay in the system as well as some potential approaches for reducing the delay. My hope is that such a perspective will help those considering this issue to step back to see the forest instead of merely considering the trees. As I will explain below, I have come to believe that only a global assessment of the current system with real participation by representatives of all the relevant constituencies will affect long-term and sustainable improvements in the system.
This Statement proceeds as follows. In Section I (at pages 3-10), I provide a general (and basic) overview of the current system by which veterans’ benefits are awarded and reviewed. Of course, the Members of the Subcommittee are well aware of this structure. In include this discussion because I believe it is critical to reflect on the rather complex structure that is in place because that structure is one of the causes of delay. In other words, because those of us who work in the area of veterans law are so familiar with the structure by which benefits are awarded, we can often forget how unique (and complex) that structure actually is.
Section II (at pages 10-15) draws on this discussion of the veterans’ benefits system to highlight the significant causes of delays in appellate review of benefit determinations. As that discussion illustrates, the problem of delay may be more complex than one would imagine in part because many of the causes of delay stem from aspects of the current system that, in the abstract, are meant to protect veterans in the process. Thus, one needs to confront the possibility that efforts undertaken to help veterans in connection with their receipt of benefits could have negative consequences.
Section III (at pages 16-23) provides some suggestions for possible reductions in these delays. As that discussion makes clear, I strongly believe that the most likely means of achieving real reductions in such delays lies in the creation of a Commission or other body to consider the system from beginning to end. Short of such comprehensive action, Section III describes more modest, although not necessarily uncontroversial, steps Congress could take to the reduce delays caused by the matters described in Section II. Finally, Section IV (at page 24) sets out a brief conclusion.
I. The Current System in Context
This Section sets the stage for the substantive discussion of the causes of delays in appeals of benefits matters as well as some potential solutions for that issue. It first considers the structure of the current system by which benefits are awarded. It then briefly highlights the workload in the system.
Structure of Current System
Until 1988, there was effectively no judicial review of administrative determinations concerning the benefits to which veterans and their spouses and dependants might be entitled under relevant law. As the Supreme Court of the United States noted (quoting a congressional report), the VA operated in “splendid isolation.” This state of affairs changed with the passage of the Veterans’ Judicial Review Act of 1988 (the “VJRA”), Pub. L. No. 100-687, 102 Stat. 4105 (codified as amended in scattered sections of 38 U.S.C.). The centerpiece of the VJRA was the creation of what is today the CAVC.
In order to assess the current state of appellate review of veterans’ benefits determinations, both administrative and judicial, it is useful to step back and consider a high-level overview of the system in place under the VJRA. Because the Subcommittee already has a deep understanding of these matters, what follows is a general outline of what is a far more detailed system.
A veteran wishing to receive a benefit to which she believes she is entitled begins the process by submitting an application with one of the VA’s regional offices (RO). There is no time limit within which a veteran must submit a claim for benefits. In other words, there is nothing like a statute of limitations that is a familiar part of more traditional civil litigation. If the veteran is satisfied with the benefits awarded, the process is at an end. However, there are a number of reasons why the veteran may be dissatisfied with the RO’s decision.
When the veteran is dissatisfied with the RO’s decision, she has the option to pursue an appeal within the VA by filing a “Notice of Disagreement” (NOD) with the RO. The NOD triggers the RO’s obligation to prepare a “Statement of the Case” (SOC) setting forth the bases of the decision being challenged. If the veteran wishes to pursue her appeal after receiving the SOC, she must file VA-Form 9 with the RO indicating her desire that the appeal be considered by the Board.
The Board bases its decision “on the entire record of the proceeding and upon consideration of all evidence and material of record and applicable law and regulation.” See 38 U.S.C. § 7104(a). In addition to the material developed at the RO, the Board may also conduct personal hearings with the veteran at which new evidence may be added to the record. In other words, the Board’s “appellate process” is far more solicitous in terms of accepting new evidence than is most appellate processes. A final Board decision concludes the administrative process.
If a veteran is dissatisfied with a final Board decision, she may elect to appeal that decision to the CAVC, which has exclusive jurisdiction to review such matters. The Secretary may not appeal an adverse Board decision. See 38 U.S.C. § 7252(a). Congress created the CAVC under its Article I powers. See 38 U.S.C. § 7251. The CAVC is comprised of judges appointed by the President with the advice and consent of the Senate to serve fifteen-year terms. See 38 U.S.C. § 7251(a), (b), (c). The CAVC has the “power to affirm, modify or reverse a decision of the Board or to remand the matter, as appropriate.” See 38 U.S.C. § 7252(a). The CAVC is an appellate body that Congress specifically precluded from making factual determinations. See 38 U.S.C. § 7261(c). The CAVC has ruled that its jurisdiction is limited to denial of (or other dissatisfaction with) individual claims determinations. Specifically, the CAVC has held that it is without power to adjudicate class actions or other aggregate litigation concerning more generic issues that may affect groups of veterans.
Any aggrieved party may appeal a final decision of the CAVC to the United States Court of Appeals for the Federal Circuit (Federal Circuit). See 38 U.S.C. § 7292. Review of Federal Circuit decisions is available by writ of certiorari in the Supreme Court. See 28 U.S.C. § 1254 (providing for Supreme Court appellate jurisdiction concerning decisions of the courts of appeals). Review in these Article III courts is limited by statute. Specifically, in the absence of a constitutional issue, the Federal Circuit may review only legal questions; it specifically is precluded from ruling on a factual determination or on the application of law to the facts in a particular case. See 38 U.S.C. § 7292(d)(2).
Figure A summarizes the current procedures for considering challenges to the determination of entitlement to veterans’ benefits:
Something that is often overlooked when considering the current system by which veterans’ benefits are awarded and such decisions are reviewed is that the system was not one designed from beginning to end at the same time. Rather, it is the product of the addition of judicial review on top of the pre-existing administrative system through the VJRA. In other words, the two parts of the current system – administrative and judicial – were simply grafted together in the late 1980s. Moreover, as mentioned above, the judicial review process itself is unique in the way in which the various judicial actors interact with one another. The bottom line is that it is not surprising that the very structure of the system can lead to delays in the processing and review of claims and appeals because the various parts of the system were not consciously designed to in the most efficient manner.
The administrative portion of the process from the filing of an application for benefits through consideration of an appeal by the Board is meant to be one that is non-adversarial and pro-claimant. The Supreme Court recently reiterated that Congress has made clear its intention that the administrative process is meant to be something radically different from a traditional adversarial process of litigation. For example:
• The VA is required to provide certain notices to claimants concerning what must be done to establish an entitlement to benefits. Such notice includes “any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.”
• Significantly, the VA has a statutory duty to assist claimants in developing evidence to establish their claims.
• As mentioned earlier, there is no statute of limitations to file an application seeking benefits based on a service-connected disability.
• Principles of res judicata have far less purchase in the administrative system than they do in general civil litigation because veterans seeking to revisit rejected claims have the ability to reopen claims based on the submission of “new and material evidence” or to attack the earlier decision by alleging that it was the product of “clear and unmistakable error.”
• Whenever positive and negative evidence on a material issue is roughly equal, the VA is required to give to the veteran the “benefit of the doubt” with respect to proof of that issue.
• The VA is required to “sympathetically read” a veteran’s claim documents.
• In terms of statutory interpretation, the Supreme Court has adopted a “rule that interpretative doubt is to be resolved in the veteran’s favor.”
The upshot of these statutory factors is that the administrative process is quite different from what one is used to in the more traditional adversary process. However, a more traditional adversary process is precisely what one finds when one appeals from an administrative determination to the judiciary process. When one reaches the CAVC and thereafter the Federal Circuit, the landscape is one that would be familiar to any lawyer – a traditional American adversarial process. My point here is merely that the current process of appellate review is a very odd one.
A final important consideration concerning the current structure of the veterans’ benefits system is the role of lawyers in terms of representing claimants. For much of the history of the United States, there was a limited role for lawyers in the veterans’ benefits process. To begin with, it was not until the enactment of the VJRA in 1988 that there was judicial review (and judges are lawyers after all) of benefits determinations. And it took until 2006 for Congress to allow lawyers charging a fee to represent claimants prior to a final Board decision. Thus, while the nation’s commitment to providing benefits to its veterans is not new, the integration of lawyers in a meaningful way into that system is still in its infancy. There is no question that the integration of lawyers into a non-adversarial process has been a challenge and that challenge has caused some delay in the process of administrative appellate adjudication.
Workload in the System
Before leaving the general description of the structure of the veterans’ benefits system, one should not discount the reality that every stage in the process the current system operates under a staggering workload. Both this Subcommittee and its counterpart in the Senate have held numerous hearings over the past few years addressing this very real problem. There is no need here to dwell upon the statistics at the various adjudicatory levels in the process. For present purposes, the summary below is sufficient to establish that the system is operating with what can only be described as crushing numbers of claims and appeals:
Matters Before the Board
For fiscal year 2011, the Board physically received 47,763 appeals. During this same period, the Board disposed of 48,588 appeals. Finally of note, during fiscal year 2011, there were 122,663 NODs filed concerning RO decisions.
Matters Before the CAVC
The most recent statistics available concerning the CAVC’s workload are for fiscal year 2011, from October 1, 2010 to September 30, 2011. During this period, there were 4,086 appeals and petitions filed with the court. The workload of the court is even greater when one considers dispositions. In fiscal year 2011, there were 7,562 dispositions of one form or another constituting 4,620 appeals, 167 petitions, 2,517 applications under the EAJA, and 258 requests for reconsideration or panel review. In terms of how those decisions were rendered, the court reported the following:
• 4,742 matters were resolved by the Clerk of Court;
• 2,661 matters were resolved by a single judge;
• 149 matters were resolved by a panel; and
• 10 matters were resolved by the court sitting en banc.
Matters Before the Federal Circuit
In fiscal year 2012 (October 1, 2011 to September 30, 2012), the most recent period for which statistics are available, there were 189 appeals filed in the Federal Circuit originating in the CAVC. This accounts for approximately 14% of the matters filed at the Federal Circuit. During this same period, the court resolved 193 matters originating in the CAVC, also amounting to approximately 14% of terminations.
Having described the current structure of appellate review of veterans’ benefits determinations and well as the workload of the system, this Statement now turns to the causes of delay in that system and some possible approaches to reducing that delay.
II. Some Thoughts About the Causes of Delays in Resolution of Appeals
The previous Section described the current structure of the system by which veterans’ benefits are awarded and reviewed. The purpose of that discussion was to remind us all of the unique nature of that system. In this Section, I build on that discussion with a focus on some of the major, systemic causes of the delays experienced by claimants in the review of benefit claims. I highlight four such systemic causes of delay, causes that in my view are often overlooked in the discussion. Those four areas are: (1) Congress’ amazing generosity to veterans and their families; (2) the ad hoc development of the veterans’ benefits system that led to its current structure; (3) the wide array of procedural protections provided to veterans; and (4) the complex nature of the law underling the provision of veterans’ benefits.
Before turning to a discussion of each of these major causes of delay, two overarching points are important to note. First, I wish to note that I do not believe that anyone involved in the process by which veterans seek and contest denials of benefits intentionally causes delay. In other words, I firmly believe that every part of the system has as its goal the prompt provision of benefits to those claimants entitled to receive them. This is not a situation in which we have “bad actors” to root out.
Second, when one considers the causes of delay I have identified, it should be clear that so long as the goal of providing every possible advantage to veterans remains operative, delays in adjudication are going to be inevitable. When one provides a breathtakingly broad range of benefits to a group provided extraordinary procedural protections and those benefits are administered by a giant bureaucracy, the process of receiving benefits will be long in any objective sense. This is not to say that the current delays the Subcommittee is considering are acceptable. It is just to make clear that there is a cost to the positive attributes of the system and that cost is some measure of delay.
With these caveats clearly presented, the balance of this Section considers in some additional detail the causes of delay I have listed above. Section III turns to potential approaches to dealing with that delay.
The Generosity of Congress
There is nearly universal agreement that the nation owes an incredible debt of gratitude to the men and women who choose (or who were selected to) serve in the armed forces. They make (or made) it possible for the entire country to live the extraordinary lives we get to live. And Congress has recognized the service these men and women have provided by providing an extraordinarily broad range of benefits to which they are entitled. These benefits include disability compensation, life insurance, home loans, and educational benefits among many others. And while I understand that the current focus of the Subcommittee is on the appellate process, the reality is that the more initial claims that are made the more appeals will follow as a matter of logic.
In my estimation, Congress’ decision to make the broad range of benefits to veterans and their families is the right thing to do as a matter of policy. But that correct and honorable decision comes with a cost. That cost is the necessity to have a system by which those benefits are administered.
In addition to the range of benefits, Congress’ generosity has extended to the time within such benefits may be sought. While some benefits have a time limit, one of the most significant benefits does not – service-connected disability compensation. For that benefit, for example, a veteran may seek compensation for a service-connected disability at any time. The result is certainly pro-claimant but the resolution of claims filed twenty, thirty or even forty years after a person’s service can be time-consuming.
Finally, the management of the wide array benefits Congress has made available to veterans and their families requires by its very nature a large bureaucracy. No matter how one feels about so-called “big government,” it requires a great many people to review millions of claims for benefits submitted each year and many more to provide the review of those initial decisions. There no doubt that there are inefficiencies in the VA, a point I will return to below. However, for now the point is that a cause of some of the problems the Subcommittee is considering is related to the commitment of Congress to veterans and the corresponding creation of a process by which that commitment is translated into tangible outcomes.
The Ad Hoc Development of the Veterans’ Benefits System
Another significant cause of the delays in resolution of veterans’ appeals of benefits denials can be traced to the ad hoc development of the benefits’ system itself and the various consequences that flow from that development. As one will recall from the summary of the system set out in Section I above, the system we have today is the result of additions over a long period of time. It is as if one had built a house with many additions over the years but there was no conscious planning of what the residence should ultimately look like. The structure works as a house but not in the way in which it would have had it been planned at a single time. In this sub-section, I briefly highlight some of the way in which the ad hoc development of the benefits’ system contributes to current delays.
• The system includes two dramatically different segments: a non-adversarial administrative structure onto which a traditional judicial system has been grafted. Moreover, the engrafting of that judicial superstructure came only after many years in which the administrative structure existed in isolation. This part of the system’s development causes delay in several respects.
o First, there is a disconnect between the two parts of the system for veterans as they move from the non-adversarial process to the traditionally adversarial judicial process. This transition can be a difficult one for unrepresented veterans who have grown accustomed to being assisted in the development of their claims. The transition adds time to the resolution of cases reaching this level of the system.
o Second, even after a quarter-century of the presence of courts in the process, it does not appear that all of the actors in the administrative system have fully accepted judicial review. Some of this resistance may be conscious. But leaving that aside, it also seems that even after twenty-five years there is not a sufficiently well-developed means by which legal ruling are communicated to front line adjudicators in a timely and understandable manner. The result of this state of affairs is that errors occur that could be avoided and those errors will also lead to likely needless remands to apply the correct legal rule. These remands in turn add to the length of time it takes for an appeal of an administrative decision to be fully resolved based on the correct legal principles.
o Third, even if there were not resistance (conscious or unconscious) to the imposition of judicial review, the complex body of law imposed on the administrative process is being implemented in the first instance by non-lawyers. This reality means that errors in adjudications are extremely likely to occur, requiring correction on appeal.
• Another source of delay inherent in the structure of the system as it currently stands can be tied to certain requirements Congress has imposed on various actors in the process.
o First, Congress made the decision to create the CAVC as an appellate body and specifically precluded that body from making factual determinations. See, e.g., 38 U.S.C. § 7261(c). The decision to have judicial review of veterans’ benefits decisions vested in an appellate tribunal and the corresponding restriction on making factual determinations have an important consequence. The CAVC will often find an error the Board has committed but conclude that the proper remedy is to remand the matter so that the Board may conduct the appropriate fact-related exercise. In other words, this structural feature of the system is a critical component of the so-called hamster wheel on which so many veterans find themselves.
o Second, and related to the first point, Congress has required that the Board’s decisions contain: “a written statement of the Board’s findings and conclusions, and the reasons and bases for those findings and conclusions, on all material issues of fact or law presented on the record. . . .” 38 U.S.C. § 7104(d)(1). The rationale for doing this is two-fold. We want the veteran to understand why the Board has reached its conclusions. We also want to make sure that a court can meaningfully review the Board’s actions. However, this requirement is also a component of the hamster wheel because so-called “reasons and bases” errors are extraordinarily common. When the CAVC determines that there is a lack of reasons or bases (or as is also common, the parties on appeal agree that the Board’s decision lacks a sufficient statement of reasons and bases), the only recourse is a remand. At that point it seems quite likely that the Board will issue another decision reaching the same result but with more explanation. That, in turn, will lead to another appeal to the CAVC. The wheel continues to turn.
o Third, Congress made a determination to include two-levels of as-of-right judicial review of administrative decisions. As described above, a dissatisfied claimant has a right to appeal a final Board decision to the CAVC. Either party then has a right of appeal to the Federal Circuit. As far as I am aware, this is the only example in federal practice of two levels of as-of-right appellate review. There is no question that the inclusion of the Federal Circuit in the chain if review adds to delays in the appellate process. Most obviously, in cases appealed to that court the appellate process is lengthened by definition as the court considers the appeal. However, more systemically the presence of an additional layer of review contributes to delay by making the law less stable. Of course, this recognition does not mean that having the Federal Circuit as a part of the process is necessarily a bad thing. If there is some goal that the court’s inclusion supports – for example a strong concern for error correction plain and simple – having two levels of review might be appropriate. But with that extra layer of review necessarily comes delay.
• Another aspect of the ad hoc development of the current system that contributes to delay concerns the presence of lawyers in the administrative system. As described above, Congress has provided that a claimant may retain a lawyer for a fee as soon as he or she receives an initial RO decision on a claim. This was a significant change in the system which had historically disfavored the assistance of counsel. As I will discuss in Section III below, I actually believe that the greater use of lawyers in the administrative system has the potential to reduce delays in the appellate process. However, that potential is being undercut by a resistance to counsel by administrative adjudicators at all levels of the system. The result of such resistance means not only that the reductions in delays that could accompany the greater introduction of lawyers in the system are not being realized, but ironically greater delays are being introduced as administrative adjudicators and counsel engage in peripheral battles over the presence of lawyers themselves.
Procedural Protections Provided Claimants
As I have mentioned above Congress has been quite generous to veterans in terms of the benefits they are entitled to receive. I’ve explained how that generosity itself is, ironically, a part of the delays in receipt of benefits. A related concept is that in addition to being generous in the types of benefits available, Congress has also been generous in providing procedural protections to claimants in the system. Congress has provided means for veterans to have multiple hearings at the various levels of the process and to introduce new evidence well after traditional processes would preclude such an action. Moreover, as described in Section I, Congress has mandated that veterans be provided with notice and assistance in the administrative process in order to implement the non-adversarial, pro-claimant aspect of the system.
These procedural protections are important to veterans. However, with any additional layer of procedure comes a corresponding period of delay. For example, with each additional hearing comes time to prepare, have the hearing, and eventually render a decision. And with the duties of notice and assistance, a finding that such a duty has not been complied with will almost always lead to a remand. None of this is to say that the procedural protections provided to veterans are a bad thing. It is simply to note that the more procedure one affords, the longer a process will take from start to finish.
A final cause of delays in the administrative system concerns the legal complexity of the law in the area of veterans’ benefits. As Judge Lance of the CVAC recently wrote, “[t]here is an unfortunate – and not entirely unfounded – belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year.” If Judge Lance is correct – and I believe he is – delays are going to inevitably result. And it is worth noting that if the law in this area is becoming too complex for RO adjudicators to apply, how much more of a problem is that for claimants who may not have the benefit of legal counsel or assistance by a Veterans Service Organization.
Delays flow from legal complexity in at least two respects. First, it simply takes time for a legal ruling issued by the Federal Circuit or the CAVC to be communicated to adjudicators in a manner that allows it to be applied. Second, even when communicated, the complexity of legal doctrine is such that errors are inevitably a part of the process. Those errors need to be corrected on appeal at some point and these corrections often lead to remands. Those remands, in turn, can lead to further appeals lengthening the time to resolution of claims.
As with many of the causes of delay I have discussed, there is a positive attribute behind the scenes. The introduction of judicial review has unquestionable led to the legal complexity that is a part of the increased delay in resolving claims. But judicial review has also brought great benefits to the system of veterans’ benefits. I have discussed these benefits in other venues and will not repeat them here. My point at this juncture is that one has to recognize that while extensive delays in resolving claims is unquestionably not a good thing, some level of delay is part and parcel of alterations to the system that have been a good thing.
* * * * *
This Section has discussed some of the less obvious causes of delays in the consideration of appeals of veterans’ benefits claims. A common theme of that discussion has been that many of the reasons for delays in adjudication of benefits’ claims flow from aspects of the system that are positive in the abstract. Of course not all do, but the reality that there is a mix of good and bad here making crafting solutions for the problem even more complex than it otherwise would be. Section III considers some possible means to approach the problem of delays.
III. Some Thoughts About Possible Solutions for the Delays in Resolution of Appeals
This Section of my Statement turns to potential solutions to the delays in adjudication of appeals. Before describing how I will proceed, I wish to mention two preliminary points in connection with this discussion. First, I understand that the VA is in the process of computerizing its claims files. I believe that this effort will, in the long term, reduce delays in adjudication. But it is not a magic bullet. It is one part of the process. And for it to be successful, the VA must ensure that it has considered not only how digitization of its claims files will work when RO adjudicators are considering an initial claim but also how it will be employed when a matter proceeds on appeal and the claimant adds additional information to the record. None of the challenges that will come with computerization of records is insurmountable. However, we should all recognize both that there will be challenges and that the computerization project will not solve the entire problem of delay by any means.
Second, I would be cautious about assertions that adding additional adjudicators to the various levels of the system will solve the problem of delay in and of itself. I do not have the intimate familiarity with the VA’s inner workings to speak in detail about this matter. However, given what I have identified as some of the systemic causes of delay in the system (see Section II), I am quite skeptical that merely throwing more bodies in the system will sufficiently address the fundamental problem. To be sure, there should be sufficient staffing to address the caseloads at the various levels of the system. But even if fully staffed, I believe that delays will remain given the nature of many of the causes of delay in the system. See Section II, supra.
Having addressed these two caveats, the balance of this Section provides a discussion of some actions that could address the problems of delays in adjudication the Subcommittee is considering. I have broken that discussion into two parts. First, I discuss what I consider to be the most important thing Congress could do to affect systemic delays in adjudication: provide for a means of comprehensive revision of the current system from start to finish in which all relevant constituencies have a voice. This process is fraught with political difficulties and would be a major – perhaps even revolutionary – endeavor. Because I am not confident that such a comprehensive review is possible, the second part of this Section discusses more targeted actions that could be taken to reduce the delays in appellate adjudication.
Comprehensive System Review
As I discussed above, the current system by which veterans’ benefits are awarded and those decisions reviewed developed in an ad hoc manner over many years. The result of that development is a system in which there are many levels of review some of which are non-adversarial and pro-claimant while others are more traditionally adversarial. The system functions, but it is clearly not the most efficient one. That inefficiency leads to delay.
As I have argued in other places, I believe that Congress should authorize the creation of a commission to consider what a more efficient system of awarding, and reviewing decisions concerning, veterans’ benefits should look like. Such a Commission should be composed of representatives of all the relevant constituencies affected by and involved in the award of veterans’ benefits. These constituencies include: veterans (and other claimants in the system), most likely represented through the various Veterans Service Organizations; the VA in all its facets (including most definitely RO adjudicators and the Board); the CAVC; the Federal Circuit; and Congress itself.
The Commission should be charged with evaluating the current state of appellate review of veterans’ benefits determinations and making recommendations concerning what changes might be made to that system as well as in the administrative process more generally. The Commission should specifically be charged with considering how the structure of the system affects the time in which initial claims are resolved and appeals are finally adjudicated. There should be no constraints imposed on the Commission with respect to the options it might consider and/or propose. Finally, the Commission should be directed to submit a report to Congress within a defined period of time. That report should describe the Commission’s activities, provide relevant background and statistical information, and set forth specific proposals for changes to the system warranted by the Commission’s investigation.
While the Commission should not be limited in terms of the matters it considers, it should keep three interests in mind during its investigation and deliberations:
The Interests of Veterans
The paramount interest the Commission must consider is that of the veteran. The nation should never forget – and I am confident none of the people involved in the process do – that the entire structure of veterans’ benefits law exists for the purpose of providing support to the men and women who served this country. Thus, the Commission must ensure that it proposes nothing that harms the interests of the beneficiaries of the system without expressly considering the aggregate benefits that could be argued to exist from a more streamlined system.
Veterans’ interests fall into five broad categories:
• Accuracy: Veterans have an interest in ensuring that decisions concerning the award of benefits be as accurate as possible. The gains in accuracy that have likely been achieved over the past twenty–five years due in part to judicial review should be preserved.
• Fairness: It is critically important that the system of awarding benefits and reviewing such decisions both be fair and be perceived as being fair. Veterans need to believe that the system provides an opportunity for their claims to be adjudicated in a manner that is, broadly speaking, consistent with the rule of law. Thus, the gains in the nature of VA decision-making (e.g., better reasoned decisions) need to be preserved. In addition, the substantive fairness of the process needs to be preserved as well. Finally, one needs to be concerned with the speed of the decision-making process, recognizing that there is a trade-off between timely decisions and seeking to ensure that one reaches a “perfect” resolution of a given claim or appeal.
• Transparency: Closely related to fairness is veterans’ interest in a transparent process. Largely as a result of the influence of the CAVC (although aided by Congress), the process of awarding benefits has become more open. That trend should be preserved.
• Predictability: It is important that the VA and veterans and their counsel be in a position to predict how issues will be resolved. Of course, there will always be a level of uncertainty in any legal system populated by humans. Nevertheless, the value of enhanced predictability of results is important systemically.
• Finality: No legal system can exist for long in any functional respect if disputes never come to an end. Veterans, as well as the VA, have an interest in having disputes resolved once and for all. The value of finality should not drive the system. There should be means of correcting errors, but those means need to be balanced against the interests of repose. Thus, finality itself is a value that should be considered when evaluating the current – or a future – system concerning the award of veterans’ benefits and the judicial review of such decisions.
A second interest that the Commission must consider concerns the preservation of American constitutional values. In particular, the importance in the American constitutional order of the maintenance of separate and independent centers of political authority must be a part of the Commission’s deliberations. This is a structural concern. Thus, it is important to preserve an independent institutional check on the political branches’ authority to award veterans’ benefits.
The CAVC was created as an Article I tribunal, meaning that its members do not enjoy the tenure and salary protections afforded judges serving in the coordinate Article III judiciary. Under well-established law, there is no structural constitutional violation flowing from the assignment of the adjudication of disputes concerning veterans’ benefits to such an Article I tribunal. Veterans benefits are a “public right.” That is, entitlement to benefits flows from statutes instead of the common law or the Constitution itself.
The institutional concern the Commission must consider is less formalistic than a suggestion that one must necessarily have the Article III judiciary (beyond the Supreme Court) involved in the process to make it legitimate. Of course, that is one way in which one could preserve institutional concerns regarding separation of powers. But there are other ways in which such power divisions can be established and maintained. The key is that one needs to ensure that the system of review employed in the process contains sufficient independence that there is a meaningful check on the unilateral authority of the political branches.
The Public Interest
Finally, any consideration of the judicial review of veterans’ benefits decisions needs to take into account the public’s interest in maintaining a system that, while fair to veterans, also safeguards the great resources devoted to veterans and their dependants. The public has a right to ensure that the funds allotted to the VA for the payment of veterans’ benefits are spent according to the directions of Congress.
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As should be apparent from this discussion of a Commission, a systemic reconsideration of the current approach to the award and review of decisions concerning veterans’ benefits would be a monumental endeavor. It would require buy-in from many actors and a willingness to approach these issues with open minds. I also believe, however, that such a comprehensive approach to the veterans’ benefits system provides the best opportunity to either reduce delays in the system or come to a realization that, at some level, the delays in the system are present because there is some other value we collectively find so important that we are willing to countenance those delays. While I am not confident that such a systemic review of the system is likely to occur, I remain convinced that it is the best way to address the problems – real and/or perceived – in the current system
Some More Modest, Targeted Suggestions
Given the difficulties associated with a comprehensive review and/or overhaul of the current veterans’ benefits system, this sub-section turns to more modest ways for potential reductions in the time to complete appellate adjudication of claims. In one way or another, these possibilities are tied to several of the causes of delay I identified in Section II above. It may be too strong a term to describe these possibilities as suggestions. They are better thought of as approaches to consider. I highlight several such items below in no particular order:
• As described above, Congress has been quite generous with veterans in terms of the benefits available. In addition, with respect to disability compensation, Congress has not placed any limitation on when such claims may be initiated. This lack of a time period within which to bring claims is certainly veteran friendly. However, if Congress were to enact a statute of limitations for most claims, there would likely be a positive effect on systemic delays. This is so both because there would be fewer claims in the aggregate and also because long-delayed claims are often more difficult to adjudicate given the passage of time between service and the claims process. Of course, this approach would restrict the claims available to veterans. It might be that Congress is not interested in doing so even if such an action would reduce delays, but it is something to consider.
• In a similar vein, Congress could assess whether all of the current claimant-friendly procedural protections in the system are worth the attendant cost in terms of delays in the process. No question, such an approach would be better if done as part of the larger systemic approach I have discussed above. And equally certain, such an approach would be controversial. But if one seeks to reduce delays, such actions would be useful in that endeavor.
• Congress could explore whether alterations in the structure of the Board would likely reduce delays on a systemic basis. One suggestion that has been mentioned in the past is the regionalization of the Board. Under such a system, the Board would not be a single entity based in Washington as it is currently. Instead, the Board would be divided into regions much as the federal circuit courts of appeal are in the judicial system more generally. There is a possibility that such regionalization of the Board would make the system more nimble in terms of dealing with RO decisions. I confess that I am not sure that such an action would reduce delay, but at a minimum this is a possibility that should be seriously considered as a part of efforts to streamline the appellate process at the administrative level.
• I also mentioned in Section II the oddity of having two layers of as-of-right appellate judicial review, that is having both the CAVC and the Federal Circuit as parts of the system. Congress could remove the Federal Circuit from the process essentially making the CAVC the sole means of judicial review of administrative actions subject only to discretionary review in the Supreme Court. Such a system exists in the context of appeals from military courts with the United States Court of Appeals for the Armed Forces, also an Article I tribunal, the final judicial body in which one has a right of appeal with only discretionary review in the Supreme Court. Such a change in the system would be controversial. In my experience, many advocates for veterans are reluctant to remove the Federal Circuit from the process. I have not seen any empirical study to suggest that the Federal Circuit is, in fact, more friendly to veterans than is the CAVC. It seems that the resistance to removal of that court from the process is based more on anecdotal concerns. In the absence of some evidence to suggest that the Federal Circuit adds appreciably to quality of decision-making, I believe the time has come to seriously consider removing that body from the process.
• As I have mentioned at several points, and as the “hamster wheel” description of the current system suggests, the prevalence of remands in the system is a major cause of delay in the resolution of claims. Remands occur at both the administrative level (from the Board to the RO) as well as at the judicial level (from the CAVC to the Board). Actions could be taken at each of these steps in the system to address the remand issue and, consequently, delays in the adjudicatory process.
o At the administrative level, Congress has already taken steps that should, over time, have a positive effect on the time in which appellate review is completed. For example, claimants now have the ability to waive initial consideration of new evidence introduced at the Board by the RO (thus preserving the statutory right to “one appeal to the Secretary”). Further steps are possible. One possibility would be to restrict by statute the discretion Board Members (or Veterans Law Judges) have to remand given matters. Such restrictions could be based on relatively simple criteria such as the time in which an appeal has been pending or the nature of the claim at issue. Alternatively, Congress could provide more detailed guidance in which it limited discretionary remands by more detailed matters such as the particular issue in contention. Congress could also be veteran-friendly when taking such steps by allowing a veteran to consent to a remand but not have one forced on him or her. I believe limiting the discretion to remand cases form the Board would have a positive effect on the time in which administrative appeals of claims are decided. However, such reductions in delay could come at the cost of having less reasoned consideration of certain matters. It could also have important effects on the nature of the Board. Such countervailing matters should be an important part of any decision to adopt these changes.
o Remands are also a serious issue at the judicial level. One significant reason for such remands is the CAVC’s reluctance to engage in statutorily prohibited fact finding. So, for example, the CAVC will conclude that the Board made a certain error (often because of the provision of insufficient reasons and bases). Having found such an error, the CAVC will almost always remand the case to the Board to adjudicate the appeal in the first instance. No doubt, this course of action will often be correct so long as the CAVC is prohibited from making factual determinations in the first instance. However, I believe the CAVC (either on its own initiative or at the direction of Congress) could be more aggressive in using its power to reverse the Board as opposed to remanding a matter. Specifically, I have suggested elsewhere that the CAVC should adopt a form of hypothetical clearly erroneous review. Under this approach, the court would ask whether on the state of the evidence in the record if the Board had made a factual finding against the claimant, would the court have been left with the “definite and firm conviction that a mistake has been committed.” The CAVC uses such a standard to assess actual findings of fact the Board has made. It is true that the proposal would be for a hypothetical review of a finding of fact not actually made. My point, however, is that if the court were to conclude that on the face of the record existing before the court a finding of fact adverse to the veteran would be clearly erroneous, it seems that there is no need for a remand. I have not attempted to assess empirically how much of an effect such hypothetical clearly erroneous review would have, but I suspect it could have a not insignificant impact over the run of appeals.
• Congress should also consider specifically authorizing the CAVC to consider adopting a rule for the aggregate resolution of issues on appeal. As I discussed in Section I, the CAVC has ruled in a number of decisions that it lacks the authority to resolve issues using a procedure akin to a class action in general civil litigation. Whatever the merits of those decisions, I believe that adopting such a procedural approach could reduce delays in adjudication on a systemic basis. If the court we able to formally adjudicate an issue that had binding legal effect on hundreds or thousands of cases, I firmly believe that the process of adjudication would be streamlined. There is not time here to explore this concept fully. However, I strongly urge Congress to at least allow the CAVC to explore the adoption of such a rule.
• Finally, as I have mentioned above, a unique feature of the current system is that Congress has simultaneously indicated that it expects the administrative system to be non-adversarial while at the same time indicating that lawyers should be a greater part of the system. Unfortunately, the introduction of lawyers into the purportedly non-adversarial system has not been as smooth as one would have hoped. The reality is that no one has handled this development well. VA has not accepted their introduction. The CAVC has seemed uncomfortable with their presence. And the lawyers themselves have not seemed to embrace a role that is non-adversarial. I believe that if lawyers were used appropriately in the administrative system, the delays in adjudication would be reduced. For example, lawyers are trained to tie evidence to legal requirements. Thus, even in a non-adversarial system, lawyers should be able to assemble material that in the long run will make the claims adjudication process more efficient. Congress could accelerate the integration of lawyers into the system by mandating that the VA adopt regulations by which lawyers would be utilized to develop claims as part of the non-adversarial process. This will not be an easy task, but I firmly believe that it can bear significant fruit going forward.
In conclusion, I want to stress that nothing I have written should be taken to cast aspersions on anyone involved in the current system for the award and review of veterans’ benefits. I firmly believe that the people who have elected to devote a good portion of their professional lives to working in this system have nothing but the best interests of veterans at heart. In many respects, they are heroes themselves because they are a contemporary example of President Abraham Lincoln’s call in his famous Second Inaugural Address (as slightly edited to reflect today’s society) for the nation “to care for him [and her] who shall have borne the battle and for his widow [or her widower], and his [or her] orphan.”
But even with the best intentions – as I stress again I believe all those in this process have – there is no question that veterans and their dependants often wait a long time for the resolution of their claims for benefits. As I have tried to indicate, the causes of such delays are more complex than one might at first suspect. And they often can find their roots in aspects of the system that have some positive values.
All of this, in turn, means that potential solutions to the problem of delay are correspondingly complex. I have attempted to provide some suggestions for addressing the problem, but the reality is that none of the “solutions” are particularly easy. I have a great deal of respect for the Subcommittee’s decision to focus attention on the problem. Thank you again for allowing me to submit this Statement as part of the process.