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THE VA BENEFITS "HAMSTER WHEEL" -- An attorney
testifies
about problems in the VA benefits appeals
process.
I don't post a lot of Congressional testimony.
It is usually dull and generally self-serving.
However, this is very interesting...especially
if you've ever been caught in the VA benefits "Hamster Wheel."
Testimony here...
http://veterans.house.gov/
hearings/schedule110/may07/
05-22-07/5-22-07stichman.shtml
Testimony below:
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House Committee on Veterans' Affairs
Statement of Barton F. Stichman, Joint Executive Director, National
Veterans Legal Services Program
Testimony Before the Subcommittee on Disability Assistance and Memorial
Affairs of the House Committee on Veterans' Affairs
May 22, 2007
Mr. Chairman and Members of the Committee:
I am pleased to be here today to present the views of the National
Veterans Legal Services Program (NVLSP) on the challenges facing the
U.S. Court of Appeals for Veterans Claims (“the CAVC”).
NVLSP is a nonprofit veterans service organization that supported
throughout the 1980s bills to repeal the then longstanding bar to
judicial review of VA decision-making on claims for benefits. Since the
CAVC was created in 1988, NVLSP has represented nearly 1,000 VA
claimants before the Court. NVLSP is one of the four veterans service
organizations that comprise the Veterans Consortium Pro Bono Program,
and in that Program, NVLSP recruits and trains volunteer lawyers to
represent veterans who appeal to the CAVC without a representative. In
addition to its activities with the Pro Bono Program, NVLSP has trained
thousands of veterans service officers and lawyers in veterans benefits
law, and has written educational publications that have been distributed
to thousands of veterans advocates to assist them in their
representation of VA claimants.
At the outset, NVLSP wishes to acknowledge and commend Chief Judge
Greene, the other judges, and the staff of the CAVC on the affirmative
steps they have taken and are scheduled to take in the future to
minimize the time lag between the filing of an appeal and a decision by
the Court. These efforts are already bearing fruit. The continuing
increase in the number of appeals that are annually filed at the CAVC
makes these ongoing efforts doubly important.
My testimony today is informed by the frustration and disappointment in
the claims adjudication system experienced by many disabled veterans and
their survivors. They face a number of serious challenges, including in
the judicial appeal process. As we describe below, there are several
significant problems that cry out for a legislative fix.
1. The Hamster Wheel
For many years now, those who regularly represent disabled veterans
before the CAVC have been using an unflattering phrase to describe the
system of justice these veterans too often face: “the Hamster Wheel”.
This phrase refers to the following common phenomenon: the veteran’s
claim is transferred back and forth between the CAVC and the Board, and
the Board and the RO, before it is finally decided. The net result is
that frustrated veterans have to wait many years before receiving a
final decision on their claims.
There are at least three aspects of the CAVC’s decision-making process
that contribute to the Hamster Wheel phenomenon: (1) the policy adopted
by the CAVC in 2001 in Best v. Principi, 15 Vet.App. 18, 19-20 (2001)
and Mahl v. Principi, 15 Vet.App. 37 (2001); (2) the CAVC’s reluctance
to reverse erroneous findings of fact made by the Board of Veterans’
Appeals; and (3) the case law requiring the CAVC to dismiss an appeal if
the veteran dies while the appeal is pending before the Court.
A. How Best and Mahl Contribute to the Hamster Wheel
In Best and Mahl, the Court held that when it concludes that an error in
a Board of Veterans’ Appeals decision requires a remand, the Court
generally will not address other alleged errors raised by the veteran.
The CAVC agreed that it had the power to resolve the other allegations
of error, but announced that as a matter of policy, the Court would
“generally decide cases on the narrowest possible grounds.”
The following typical scenario illustrates how the piecemeal
adjudication policy adopted by the CAVC in Best and Mahl contributes to
the Hamster Wheel phenomenon:
* after prosecuting a VA claim for benefits for three years, the veteran
receives a decision from the Board of Veterans’ Appeals denying his
claim;
* the veteran appeals the Board’s decision within 120 days to the CAVC,
and files a legal brief contending that the Board made a number of
different legal errors in denying the claim. In response, the VA files a
legal brief arguing that each of the VA actions about which the veteran
complains are perfectly legal;
* then, four and a half years after the claim was filed, the Central
Legal Staff of the Court completes a screening memorandum and sends the
appeal to a single judge of the CAVC. Five years after the claim was
filed, the single judge issues a decision resolving only one of the many
different alleged errors briefed by the parties. The single judge issues
a written decision that states that: (a) the Board erred in one of the
respects discussed in the veteran’s legal briefs; (b) the Board’s
decision is vacated and remanded for the Board to correct the one error
and issue a new decision; (c) there is no need for the Court to resolve
the other alleged legal errors that have been fully briefed by the
parties because the veteran can continue to raise these alleged errors
before the VA on remand.
* on remand, the Board ensures that the one legal error identified by
the CAVC is corrected, perhaps after a further remand to the regional
office. But not surprisingly, the Board does not change the position it
previously took and rejects for a second time the allegations of Board
error that the CAVC refused to resolve when the case was before the CAVC.
Six years after the claim was filed, the Board denies the claim again;
* 120 days after the new Board denial, the veteran appeals the Board’s
new decision to the CAVC, raising the same unresolved legal errors he
previously briefed to the CAVC.
* the Hamster Wheel keeps churning . . .
The piecemeal adjudication policy adopted in Best and Mahl may benefit
the Court in the short term. By resolving only one of the issues briefed
by the parties, a judge can finish an appeal in less time than would be
required if he or she had to resolve all of the other disputed issues,
thereby allowing the judge to turn his or her attention at an earlier
time to other appeals. But the policy is myopic. Both disabled veterans
and the VA are seriously harmed by how Best and Mahl contribute to the
Hamster Wheel. Moreover, the CAVC may not be saving time in the long
run. Each time a veteran appeals a case that was previously remanded by
the CAVC due to Best and Mahl, the Central Legal Staff and at least one
judge of the Court will have to duplicate the time they expended on the
case the first time around by taking the time to analyze the case for a
second time. Congress should amend Chapter 72 of Title 38 to correct
this obstacle to justice.
B. How the Court’s Reluctance to Reverse Erroneous BVA Findings of Fact
Contributes to the Hamster Wheel
Over the years, NVLSP has reviewed many Board decisions in which the
evidence on a critical point is in conflict. The Board is obligated to
weigh the conflicting evidence and make a finding of fact that resolves
all reasonable doubt in favor of the veteran. In some of these cases,
the Board’s decision resolves the factual issue against the veteran even
though the evidence favorable to the veteran appears to strongly
outweigh the unfavorable evidence.
If such a Board decision is appealed to the CAVC, Congress has
authorized the Court to decide if the Board’s weighing of the evidence
was “clearly erroneous.” But the Court interprets the phrase “clearly
erroneous” very narrowly. The Court will reverse the Board’s finding on
the ground that it is “clearly erroneous” and order the VA to grant
benefits in only the most extreme of circumstances. As the CAVC stated
in one of its precedential decisions: “[t]o be clearly erroneous, a
decision must strike us as more than just maybe or probably wrong; it
must . . . strike us as wrong with the force of a five-week-old,
unrefrigerated dead fish. . . . To be clearly erroneous, then, the
[decision being appealed] must be dead wrong . . . ." Booton v. Brown, 8
Vet.App. 368, 372 (1995) (quoting Parts & Electric Motors, Inc. v.
Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
The net result of the Court’s extreme deference to the findings of fact
made by the Board is that even if it believes the Board’s weighing of
evidence is wrong, it will not reverse the Board’s finding and order the
grant of benefits; instead, it will typically vacate the Board decision
and remand the case for a better explanation from the Board as to why it
decided what it did – thereby placing the veteran on the Hamster Wheel
again. Congress should amend the Court’s scope of review of Board
findings of fact in order to correct this problem
C. How the Case Law Requiring the CAVC to Dismiss an Appeal if the
Veteran Dies While the Appeal is Pending Contributes to the Hamster
Wheel
On April 24, 2007, Christine Cote testified on NVLSP’s behalf before
this Subcommittee about another contributor to the Hamster Wheel: the
case law that requires the CAVC to dismiss an appeal if the claimant
dies before the appeals process has been completed. Under this case law,
a qualified surviving family member cannot continue the appeal at the
CAVC. Instead, the qualified surviving family member must start from
square one and file a new claim at a VA regional office for the benefits
that the veteran had been seeking for years at the time of his death. As
Ms. Cote explained, Congress should take legislative action to allow a
qualified surviving family member to substitute for the deceased veteran
and continue the appeal at the CAVC.
2. Injustice and Inefficiency Due to the Lack of Class Action Authority
The second major set of issues we would like to address involves the
injustice and inefficiency that derives from the fact that federal
courts do not currently have clear authority to certify a veteran’s
lawsuit as a class action. When Congress enacted the Veterans’ Judicial
Review Act (VJRA) in 1988, it inadvertently erected a significant
roadblock to justice. Prior to the VJRA, U.S. district courts had
authority to certify a lawsuit challenging a VA rule or policy as a
class action on behalf of a large group of similarly situated veterans.
See, e.g., Nehmer v. U.S. Veterans Administration, 712 F. Supp. 1404
(N.D. Cal. 1989); Giusti-Bravo v. U.S. Veterans Administration, 853 F.
Supp. 34 (D.P.R. 1993). If the district court held that the challenged
rule or policy was unlawful, it had the power to ensure that all
similarly situated veterans benefited from the court’s decision.
But the ability of a veteran or veterans organization to file a class
action ended with the VJRA. In that landmark legislation, Congress
transferred jurisdiction over challenges to VA rules and policies from
U.S. district courts (which operate under rules authorizing class
actions) to the U.S. Court of Appeals for the Federal Circuit and the
newly created U.S. Court of Appeals for Veterans Claims (CAVC). In
making this transfer of jurisdiction, Congress failed to address the
authority of the Federal Circuit and the CAVC to certify a case as a
class action. As a result of this oversight, the CAVC has ruled that it
does not have authority to entertain a class action (see Lefkowitz v.
Derwinski, 1 Vet.App. 439 (1991), and the Federal Circuit has indicated
the same. See Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368,
1378 (Fed. Cir. 2002).
The lack of class action authority has led to great injustice and waste
of the limited resources of the VA and the courts. To demonstrate the
injustice and waste that result from the unavailability of the class
action mechanism, we have set forth below an illustrative case study
taken from real events.
Case Study: The Ongoing Battle Between the VA and Navy “Blue Water”
Veterans
This case study involves the five-year old battle that is still being
fought between the VA and thousands of Vietnam veterans who served on
ships offshore the Republic of Vietnam during the Vietnam War
(hereinafter referred to as “Navy blue water veterans”). In section A
below, we summarize this five-year old battle being waged without the
benefit of a class action mechanism. In section B, we describe the more
efficient and just way the battle would have been waged if a class
action mechanism had been available. Finally, in section C, we describe
how the piecemeal way the battle is currently being fought will
inevitably result in dissimilar VA treatment of similarly situated
veterans.
A. The Five-Year Old Battle Between the VA and Navy Blue Water Veterans
From 1991 to 2002, the VA granted hundreds, if not thousands of
disability claims filed by Navy blue water veterans suffering from one
of the many diseases that VA recognizes as related to Agent Orange
exposure. These benefits were awarded based on VA rules providing that
service in the waters offshore Vietnam qualified the veteran for the
presumption of exposure to Agent Orange set forth in 38 U.S.C. § 1116.
In February 2002, VA did an about face. It issued an unpublished VA
MANUAL M21-1 provision stating that a “veteran must have actually served
on land within the Republic of Vietnam. . . to qualify for the
presumption of exposure to” Agent Orange. As a result, all pending and
new disability claims filed by Navy blue water veterans for an Agent
Orange-related disease were denied unless there was proof that that the
veteran actually set foot on Vietnamese soil. In addition, the VA began
to sever benefits that had been granted to Navy blue water veterans
prior to the 2002 change in VA rules.
In November 2003, the CAVC convened a panel of three judges and set oral
argument to hear the appeal of Mrs. Andrea Johnson, the surviving spouse
of a Navy blue water veteran who was denied service-connected death
benefits (DIC) by the Board of Veterans’ Appeals on the ground that her
deceased husband, who died of an Agent Orange-related cancer, had never
set foot on the land mass of Vietnam. See Johnson v. Principi, U.S. Vet.
App. No. 01-0135 (Order, Nov. 7, 2003). The legal briefs filed by Mrs.
Johnson’s attorneys challenged the legality of the 2002 Manual M21-1
provision mentioned above. Thus, it appeared that the CAVC would issue a
precedential decision deciding the legality of VA’s set-foot-on-land
requirement.
Six days before the oral argument, however, the VA General Counsel’s
Office made the widow an offer she could not refuse: full DIC benefits
retroactive to the date of her husband’s death – the maximum benefits
that she could possibly receive. Because Mrs. Johnson did not and could
not file a class action, once she signed the VA’s settlement agreement,
the oral argument was cancelled, the Court panel convened to hear the
case was disbanded, and the appeal was dismissed. Buying off the widow
allowed the VA to continue for the next three years to deny disability
and DIC benefits to Navy blue water veterans and their survivors based
on VA’s new set-foot-on-land rule.
Some Navy blue water veterans and survivors who were denied benefits by
a VA regional office based on the 2002 rule gave up and did not appeal
the RO’s decision. Some appealed the RO’s decision to the Board of
Veterans’ Appeals, which affirmed the denial. Some of those who received
a BVA denial gave up and did not appeal the BVA’s denial to the CAVC.
And some of those who were denied by the RO and the BVA did not give up
and appealed to the CAVC.
One of those who doggedly pursued his disability claim all the way to
the CAVC was former Navy Commander Jonathan L. Haas. He filed his appeal
in March 2004. The CAVC ultimately convened a panel of the Court and
scheduled oral argument for January 10, 2006 to decide Commander Haas’
challenge to VA’s set-foot-on-land rule. This time, however, the VA did
not offer to settle. On August 16, 2006, a panel of three judges
unanimously ruled that VA’s 2002 set-foot-on-land requirement was
illegal. See Haas v. Nicholson, 20 Vet.App. 257 (2006).
But this did not end the battle between the VA and Navy blue water
veterans. In October 2006, the VA appealed the decision in Haas to the
U.S. Court of Appeals for the Federal Circuit, where it is currently
pending. Last fall, Secretary of Veterans Affairs R. James Nicholson
also ordered a moratorium at the 57 VA regional offices and the Board of
Veterans’ Appeals that prevents the ROs and the BVA from deciding any
claim filed by a Navy blue water veteran or survivor based on an Agent
Orange-related disease unless there is proof that the veteran had
actually set foot on Vietnamese soil. VA estimates that the moratorium
covers 1,500 claims pending at the BVA and an untold number of similar
claims pending at the 57 ROs. This moratorium will stay in effect at
least until the Federal Circuit decides the VA’s appeal. A decision by
the Federal Circuit is not expected for another year.
Thus, if the VA ultimately loses its challenge to the unanimous CAVC
decision at the Federal Circuit, the VA will nonetheless have succeeded
in withholding disability benefits from thousands of Navy blue water
veterans and survivors for the six-year period from 2002 to 2008.
B. How This Battle Would Have Been Waged If A Veteran Could File a Class
Action
Compare the true events described above with how the battle between the
VA and Navy blue water veterans would have been coordinated if a federal
court (the Federal Circuit or the CAVC) had authority to certify a case
as a class action on behalf of similarly situated VA claimants. Years
ago, Mrs. Johnson could have asked the Court with class action authority
to certify her lawsuit as a class action on behalf of the following
class members: (1) Navy blue water veterans who (a) have filed or
henceforth file a VA disability claim based on an Agent Orange-related
disease and (b) never set foot on the land mass of Vietnam and (2) all
surviving family members who filed or henceforth file a DIC claim based
on the death of such a Navy blue water veteran from an Agent
Orange-related disease.
If the Court certified Mrs. Johnson’s lawsuit case as a class action,
the VA would not have been able to end the case by buying her off. Class
actions cannot be dismissed merely because one class member is granted
benefits. The Court could then have ordered the VA to keep track of, but
not decide, the pending claims of all class members until the parties
filed their briefs and the Court issued an opinion deciding the legality
of VA’s set-foot-on-land requirement. This action would have conserved
the limited claims adjudication resources of the VA by allowing the
agency to adjudicate other claims while the class action was pending.
When actually occurred instead is that the regional offices and the
Board expended scarce resources adjudicating and denying thousands of
claims filed by Navy blue water veterans during the period from 2002 to
the fall of 2006, when Secretary Nicholson’s moratorium went into
effect.
This action would also have conserved the resources of thousands of
disabled class members and their representatives. They would not have to
complete and submit notices of disagreement, substantive appeals forms,
and responses to VA correspondence in order to keep their claims alive.
Then, after the Court resolved the legality of VA’s set-foot-on-land
requirement, it could act to ensure that all of the pending claims filed
by class members were uniformly and promptly decided by the VA in
accordance with the Court’s decision. And all of this would have
occurred well before 2008 because Mrs. Johnson’s earlier case would have
led to the key Court decision, not the later filed case of Commander
Haas.
C. Why the Current Battle Will Inevitably Result In Dissimilar Treatment
of Similarly Situated Disabled Veterans and Their Survivors
By definition, all of the Navy blue water veterans and their survivors
who have been denied benefits due to the VA’s set-foot-on-land rule are
suffering from, or are survivors of a veteran who died from, one of the
following diseases that the VA recognizes as related to Agent Orange
exposure: soft-tissue sarcomas, Hodgkin's disease, lung cancer, bronchus
cancer, larynx cancer, trachea cancer, prostate cancer, multiple myeloma,
chronic lymphocytic leukemia, and diabetes mellitus (Type 2). These are
seriously disabling, often fatal diseases.
Assume that the Federal Circuit ultimately agrees with the unanimous
panel of the CAVC and affirms its ruling that VA’s set-foot-on-land
requirement is unlawful. Further assume that Secretary Nicholson agrees
to comply with the Court’s ruling, lifts his moratorium, and orders the
ROs and BVA to decide all of the claims subject to the moratorium and
belatedly pay these disabled war veterans and their survivors – to the
extent that they are still alive -- the many-years-worth of retroactive
disability or death benefits they were long ago denied due to VA’s
set-foot-on-land requirement.
Even if all this were done, the fact would remain that hundreds, if not
thousands of similarly situated Navy blue water veterans and their
survivors would never receive the benefits that those whose claims were
subject to the moratorium would receive. That is because VA’s denial of
their claims for disability or death benefits for an Agent
Orange-related disease became final before Secretary Nicholson’s
moratorium. To be specific, the following similarly situated VA
claimants are not subject to Secretary Nicholson’s moratorium and will
never receive benefits based on their claims:
Navy blue water veterans who filed a disability claim and survivors of
Navy blue water veterans who filed a DIC claim that was denied by a VA
regional office based on its set-foot-on-land rule, and who either
* did not file a notice of disagreement with the RO decision during the
one-year appeal period; or
* filed a timely notice of disagreement, but failed to file a timely
substantive appeal to the Board of Veterans Appeal; or
* filed a timely notice of disagreement and a timely substantive appeal,
received a decision from the Board of Veterans’ Appeals denying their
claim based on VA’s set-foot-on-land rule, and failed to file a timely
appeal with the CAVC.
The number of these similarly situated claimants is likely to be high.
Veterans with seriously disabling diseases often give up on their claim
when the VA tells them that they are not entitled to the benefits they
seek. Their disabilities deplete their energy and their resources.
Fighting the VA bureaucracy can seem a very daunting task to a veteran
suffering from cancer. Plus, they are not lawyers and are not familiar
with the legal authorities relied upon the CAVC in Haas. When the VA
tells them they are not entitled to benefits because they did not set
foot on land in Vietnam, they often believe that the VA must know what
it is doing. Thus, many of these disabled veterans simply give up and
don’t appeal their cases all the way to the CAVC.
If the Federal Circuit rules in the favor of the Navy blue water
veterans, no law requires the VA to use their computer systems to
identify similarly situated claimants who are not included in the
Nicholson moratorium. No law requires the VA to notify these similarly
situated claimants about the Court’s decision. And even if these
similarly situated claimants somehow found out about the Court decision
and reapplied, the VA would refuse to pay them the retroactive benefits
that it paid to the claimants subject to the Nicholson moratorium
because the VA would conclude that its previous final denial of the
claim – which occurred before the Haas decision -- was not the product
of “clear and unmistakable error.”
Thus, the unavailability of a class action mechanism dooms the claims of
all similarly situated Navy blue water veterans and their survivors who
are not part of the Nicholson moratorium. Legislative action is needed
to ensure that unjust situations like this are not repeated in the
future.
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Larry Scott --
