The United States Court of Appeals for Veterans Claims at Twenty: A Proposal for a Legislative Commission to Consider its Future

Abstract

Until 1988, veterans who believed that they were wrongly denied benefits to which they were entitled had no recourse outside of an administrative process. There was no judicial review. This changed with the Veterans Judicial Review Act of 1988 (the "VJRA"). In the VJRA Congress created an Article I court, today called the United States Court of Appeals for Veterans Claims (the "Veterans Court"). This Court is an appellate body independent of the Department of Veterans Affairs. It has seven judges who are appointed to fifteen year terms. As Congress recently recognized, the Veterans Court is one of the busiest of all federal appellate courts. This year, the Veterans Court is celebrating its twentieth anniversary.

This Article proposes that Congress create a commission to study the effect of judicial review over the past two decades as well as propose specific changes to the system that the Commission considers necessary. Such a commission is highly timely. The number of persons entitled to receive some form of veterans' benefit is growing. We have hundreds of thousands of American service members in harm's way. And we now know from news reports and the Dole-Shalala Commission that there are serious problems with the veterans health care system. The Veterans Court's twentieth anniversary provides a perfect opportunity to take stock.

After a brief introduction, the Article proceeds in four parts. Part I describes the current process for obtaining veterans' benefits and, in particular, the procedures by which disputes concerning such benefit determinations are adjudicated and reviewed. After outlining the current structure of benefits determinations and judicial review, this Part considers the success and shortcomings of the endeavor over the past two decades.

Having set the current stage, Part II articulates an approach for evaluating judicial review in this area including the role of the Veterans Court. It begins by explaining why such a review is warranted even if one assumes that the current structure is functioning well. It then proceeds to call for the creation of a commission appointed by either Congress or the President to conduct a full review of veterans' benefits determinations and their review. This proposed commission would include representatives of all relevant constituencies and be charged with making specific proposals to address problems in the system and to secure perceived successes. Ideally, the commission would also propose specific legislation to address any problems it identifies.

In Part III, I preview some of the courses of action open to the commission the Article proposes. The goal of this Part is not to advocate for a particular approach, although several possibilities are ruled out. Rather, Part III is designed to start the discussion that I hope will continue if a commission is convened.

Part IV is a brief conclusion. It acknowledges the political difficulties associated with any change to the current system but ultimately argues that the stakes are too high not to move ahead.

JEL Classification: K10, K40