The way of doing business at the VA may soon change if this case goes to the Supreme Court. The appellate court for VA claims, an independent federal court, has limited its own jurisdiction and essentially shuffled appeals back (by remanding those cases to the VA) into the stack of cases. We hope that the Supreme Court empowers the federally appointed court to act in the best interest of the veterans whose claims are insubstantially denied, evoking unnecessary appeals, and causing our veterans to wait for years to get a fair decision based on their conditions from military service.
NY Times – If there is one thing more frustrating, complicated and time-consuming than applying for veterans disability benefits, it may well be appealing the decisions made by the Department of Veterans Affairs on those very claims.
Under the rules of the system, veterans can appeal decisions on their disability claims to the Board of Veterans Appeals, an agency within the Department of Veterans Affairs. And if they do not like the resulting decision, they can appeal again to an independent federal judicial panel, the Court of Appeals for Veterans Claims.
Sometimes the court rules in favor of the veteran, ending the case, and sometimes it upholds the board’s decision. But as often as not, it sends the claim back down to the board for further review and processing – a decision known as a remand. And there the case may wait.
And wait and wait and wait.
Veterans lawyers call it “the hamster wheel” — decision, appeal, remand, rinse, wash, repeat. “There are massive, unconscionable delays in the system,” said William F. Fox, distinguished scholar in residence at Dickinson School of Law at Pennsylvania State University, who has written about the appeals process.
Now lawyers for an 80-year-old widow of a veteran are asking the United States Supreme Court to empower the Court of Appeals for Veterans Claims to issue fewer remands and simply issue final decisions on its own. The lawyers hope that if they succeed, many more cases will be decided much faster.
The facts of the case are these, according to the court documents:
Dennis Donald Acheson was an engineer who served in the Army between 1952 and 1954. In 1953, he was assigned to a classified nuclear-testing operation in Nevada where he was exposed repeatedly to radiation, his lawyers and doctors say. In 1971, at the age of 42, he died from a form of lymphoma. Shortly after his death, his widow, Lady Louise Byron, applied for a death pension and other benefits provided by the federal government to widows of veterans.
Ms. Byron, who remarried after Mr. Acheson’s death and has since divorced, submitted evidence from doctors saying that her husband’s cancer was directly a result of the radiation he was exposed to in the Army. After repeated rejections and appeals, the Board of Veterans Appeals in 2009 granted part of her claim and set an effective date of 1988 – entitling her to a retroactive payment for benefits starting from that date.
But Ms. Byron asserts that the effective date should be 1971, when her husband died. She appealed to the Court of Appeals for Veterans Claims, which last year agreed that the board had probably erred on the effective date. But rather than ending the case there, the court remanded it to the board.
In its decision, the court wrote that it would not address whether an earlier effective date was warranted, “because that would require it to make factual determinations in the first instance based on the evidence the Board failed to consider, which it may not do.”
Ms. Byron appealed that ruling to the United States Court of Appeals for the Federal Circuit, but lost. Now, she is asking for relief from the Supreme Court.
Edward Reines, a California-based lawyer who is handling Ms. Byron’s case, said the Court of Appeals for Veterans Claims was wrong to say it was powerless to consider the facts of the case. He argued that the case record has all the evidence the court needs to rule in Ms. Byron’s favor and bring the four-decade-long case to an end.
“We deserve reversal, not remand, because the record is complete,” Mr. Reines said. “To say the Court of Appeals for Veterans Claims cannot even consider whether there is a bona fide issue is wacky and so harmful to a system that is already backlogged.”
A number of veterans organizations, including Paralyzed Veterans of America, Gold Star Wives of America and the National Veterans Legal Services Program have filed a brief supporting Ms. Byron’s case.
In their briefs, Justice Department lawyers representing the Department of Veterans Affairs argue that the Court of Appeals for Veterans Claims, like most federal appeals courts, does not have the authority to review the record and make decisions on the facts of a case.
“The Veterans Court’s jurisdiction is limited by statute,” the government says in one brief. “The Veterans Court is authorized by statute to ‘affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.’”
But Professor Fox of Penn State, who has also written a brief supporting Ms. Byron, said the veterans court was different from other federal appeals courts and, whether it realizes it or not, actually has more power to make decisions than the executive branch contends.
He asserts that Congress, when it created the court in 1988, wanted it to be an independent body with the expertise not only to uphold or overrule the Board of Veterans Appeals but also to make judgments on the merits of a case.
“They wanted a group of judges that essentially would take a fresh, nonpartisan look from outside the agency,” Professor Fox said. “They wanted this court to be expert.
“Their failure to exercise that power is creating a Ping-Pong effect. We’re just trying to get the court to flex a little more muscle.”
The Supreme Court is likely to decide early next year whether it will hear the case.
Source: New York Times, November 20, 2012, by James Dao