21 Pages Posted: 14 Oct 2019 Last revised: 30 Apr 2020
Date Written: October 1, 2019
It is important to concede up front that the task at hand—the diagnosis and treatment of the singular most formidable legal challenge currently faced by American veterans—is beyond the capacity of this essay. The litany of ways in which federal law deprives our former service members of fundamental legal rights enjoyed by non-veterans and attributable to veteran sacrifice make it impossible to reasonably choose just one culprit. More frustratingly, the purportedly “pro-veteran” American public appears either unaware of—or unconcerned about—the law’s anomalous treatment of veterans insofar as basic due process rights are concerned. As United States Marine Corps veteran and law professor Andrew Popper has explained, “service members are routinely called heroes—and they are. It is the highest public calling. Yet these gestures seem, at best, incomplete when accompanied by a deprivation of . . . the basic rights due to all citizens.”
Federal case law, for example, has stripped veterans of the right to bring a tort cause of action against the federal government to vindicate injuries they incurred in-service. Title 38 of the United States Code also denies veterans the right to robust judicial oversight of Department of Veterans Affairs (VA) decisions denying them their hard-earned service-connected benefit entitlements. These unjustified, veteran-centric due process deprivations are compounded by the federal statute that prohibits veterans from exercising the fundamental right to counsel during the initial stage of the VA claims process. This essay, therefore, argues that the federal statutory scheme and pertinent case law that has long-denied veterans the right to counsel throughout the VA’s veterans’ claims adjudication process is beyond ripe for reform.
This essay proceeds in four parts. Part I explains the federal doctrine that denies veterans the right to bring a private cause of action to remedy in-service injuries caused by the federal government’s tortious conduct. Part II details the genesis of the country’s policy that denied veterans the right to judicial oversight of VA’s service-connected claims decisions until recently and examines the on-going inadequacy of the current veteran judicial review scheme. Part III provides an overview of both the legacy and new-enacted veterans’ service-connected disability claims processes. It then explores the historic—and bogus—rationales underlying the nation’s long-standing refusal to extend to veterans the right to hire counsel during VA claims adjudication proceedings. Part IV concludes this essay by recommending that federal law be reformed to extend to veterans the right to obtain legal representation during the initial stage of the VA claims process and offering myriad arguments in favor of that proposal.
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