Why So Many Remands?: A Comparative Analysis Of Appellate Review by the United States Court Of Appeals for Veterans Claims

Abstract

Many commentators have offered opinions about the outcome of cases at the United States Court of Appeals for Veterans Claims (CAVC). Most opinions assume the premise that the CAVC rarely reverses decisions of the Board of Veterans Appeals and remands matters for further proceedings at a very high rate. However, the statistical information available is limited and there has never been an empirical analysis of whether this premise is true. This article tests that premise by looking at the factors that shape CAVC decisions, conducting a detailed statistical analysis of outcomes in CAVC decisions, and comparing those results to published studies of other appellate review by Article III courts. It concludes — contrary to conventional wisdom — that the outcomes of cases at the CAVC are consistent with analogous types of appellate review in other federal courts. The rate of reversal by the CAVC is comfortably within normal limits and arguably relatively high in published opinions. The rate of remand by the CAVC is higher than the average for federal appellate courts, but is consistent with the rates for review of the other major nonadversarial system, the social security disability insurance benefits system. This result is consistent with the nature of the cases presented to the CAVC and the doctrines of appellate review applied by the CAVC, which suggest that a somewhat elevated remand rate is a natural consequence of the structure of the veterans benefits system and the CAVC rather than evidence of a malfunctioning process. Ultimately, the fact that the widely held perceptions of CAVC review do not withstand scrutiny suggests that more empirical study of the veterans benefits system is required and that other assumptions about the system should questioned.