Fresh Eyes on Persistent Issues: Veterans Law at the Federal Circuit in 2012

Abstract

Since the advent of judicial review of veterans claims over twenty years ago, representatives of veterans have chafed at the jurisdictional limits of the Federal Circuit. They have struggled to draw the court into a more active role in both reviewing individual decisions of the Court of Appeals for Veterans Claims (CAVC) and prodding the CAVC toward reversing the Department of Veterans Affairs’ Board of Veterans’ Appeals (BVA) more frequently. In 2012, there was a broad yet unsuccessful effort by veterans representatives to revisit the limits of judicial review. This article examines that effort, and explains that the dissatisfaction that drove the push was caused by a dynamic established by the Veterans Judicial Review Act, which generally prevents attorneys from becoming involved in veterans claims until after agency proceedings are concluded and the factual record is closed. This constraint on attorneys’ involvement leaves such representatives with no option in most cases before the CAVC other than to argue that there was a procedural error that requires a remand to the BVA, where the record can be reopened and supplemented. Such procedural arguments have found receptive ears at both the CAVC and Federal Circuit due to the paternalistic nature of the veterans claims process. However, the constant accumulation of new procedural requirements over time has made the general claims process longer, more complex, and more frustrating for many veterans. To produce better results for veterans, this cycle must be broken, by adopting an attorney-fee system specifically tailored for veterans claims. Such a system would direct attorney energy toward helping veterans obtain the evidence necessary to bring complex claims to final resolution, rather than merely continuing to add procedures in the vain hope that more general rules will produce faster and more accurate results across the endless fact patterns presented in the more than one million claims that VA must adjudicate each year. Two potential options for such change are discussed.

Keywords: veterans law, federal circuit, attorney fee, VJRA, EAJA, chenery, judicial review, board of veterans' appeals, court of appeals for veterans claims