Thirty Years of Veterans Law: Welcome to the Wild West
62 Pages Posted: 10 Apr 2019
Date Written: 2019
Thirty years ago, responding to veterans’ concerns that the VA was not honoring its promises to “care for those who shall have borne the battle,” Congress made its first major change to the Department of Veterans Affairs (VA) system since the American Civil War. In 1988, Congress created the United States Court of Appeals for Veterans Claims (CAVC) to provide the first judicial review of VA decisions concerning veterans’ and widows’ claims for benefits. To compare the practice of veterans law over the past thirty years to a train gathering momentum as it moves along the tracks would be appropriate. However, it would be just as appropriate to compare the practice and evolution of the law to the burgeoning legal system depicted in old movies in which John Wayne tries to implement justice in a land that previously has not known it. The analogy of the Wild West is sometimes used amongst veterans law practitioners and professors who teach in this area to describe its fresh expanse, which is often devoid of legal precedent, built on shifting ground, and presents a landscape where a true pioneer can both make an impact and see measurable success.
As the first court to consider administrative law principles in what is admittedly a thoroughly unique agency, the CAVC had to start from scratch in building a body of case law for veterans, advocates, and the VA to rely upon when adjudicating claims for benefits. Thirty years later, the uniqueness of this area of law and the influx of new and creative advocates on behalf of veterans leads to an ever-transforming background of jurisprudence. In the past two years alone, the CAVC and the Federal Circuit, which reviews decisions of the CAVC, have considered large, lurking issues heretofore undecided to include delay in the VA system leading to due process violations and the potential of permitting class-action suits in order to challenge VA procedures and policies.
In addition to the CAVC’s influence, in 2017 Congress responded to calls to address the inefficiency of the VA’s systems and to remedy the fact that veterans can wait five to seven years for a judge to initially review appeals of VA decisions. Congress’ answer was another monumental change to veterans law -- the Appeals Improvement and Modernization Act. This law, which reads like a “choose your own adventure” story, completely alters the method by which veterans may appeal denials of benefits claims in order to implement a more efficient system. It simultaneously causes experienced practitioners in veterans law concern to see this new and complicated system overlaid on top of over 400,000 cases still being decided and delayed in the original and inadequate legacy system.
The last articles written as a survey of the CAVC’s decisions were published a decade ago to commemorate the twentieth anniversary of the court. This article will consider the last decade of the CAVC’s jurisprudence, the impact of the new appeals legislation on the process, and the emergence of a new area of veterans law affecting eligibility for benefits – discharge upgrade litigation. In order to accomplish these goals, this article will provide an introduction to these issues in Part I. Part II will explore the creation of the CAVC, the arguments for and against its creation at the time, and the validity of these concerns in retrospect. It will also review the most significant changes to veterans law jurisprudence in the past decade. Part III will discuss the Veterans Appeals Improvement and Modernization Act, compare the Act to the current system, identify areas of concern, and comment on the VA’s rollout of the new system. Part IV will look at the third major explosion in veterans law in the past decade, the proceedings filed against the Department of Defense (DoD) by veterans who received bad characters of discharge from the military because they were suffering from disabilities to include post-traumatic stress disorder or brain injuries. This article will also analyze DoD’s response to this litigation and its implementation of methods to ameliorate veterans in this situation. Part V will end the discussion with some thoughts on the importance of inspired lawyering in an area of law that rewards creative tenacity on behalf of clients. Practicing veterans law in the next decade will offer unlimited opportunities for those brave-of-heart who choose to demonstrate the spirit of a true pioneer and look for different ways to shape the legal landscape for the benefit of our nation’s veterans. As John Wayne said “Sometimes it isn’t being fast that counts, or even accurate; but willing.” Welcome to the Wild West!
Keywords: veterans, department of veterans affairs, court of appeals for veterans claims, veterans appeals improvement and modernization act, veterans appeals
JEL Classification: k39, k4
Suggested Citation: Suggested Citation