CREATING AN UNPRECEDENTED NUMBER OF PRECEDENTS AT THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS.

AuthorAntweiler, Natsumi

TABLE OF CONTENTS INTRODUCTION 2313 I. BACKGROUND 2315 A. How the VA Adjudicates Claims for Benefits 2316 B. Why the Backlog Exists 2318 C. Why Class Actions Are Insufficient to Remedy the Situation 2321 II. THE BENEFITS OF PRECEDENTIAL OPINIONS 2322 A. Nature of the CAVC 2323 B. Merits of Nonbinding Decisions 2324 C. The Downside of Having Limited Precedential Opinions 2325 III. SOLUTIONS FOR CREATING MORE PRECEDENTIAL OPINIONS 2327 A. Increasing Judges at the Court of Appeals for Veterans Claims Without a Ceiling 2327 1. Current Statutory Provisions Regarding Active and Retired Judges 2327 2. Proposing a Statutory Amendment 2328 3. Counterarguments and Justifications 2329 4. Alternative Proposal: Expanding the Role of Retired Judges 2330 B. Mechanism to Convert Nonprecedential Opinions to Precedential Opinions: Formation of a Special Reviewing Process 2331 1. Justification for Creating a Special Reviewing Process 2332 2. How the Special Reviewing Process Works 2333 CONCLUSION 2334 INTRODUCTION

In February 2012, Mr. Conley F. Monk, Jr., a Marine Corps veteran who served during the Vietnam War, filed a claim with the U.S. Department of Veterans Affairs (VA) for disability benefits regarding his post-traumatic stress disorder and other disabilities. (1) Initially, he was denied benefits because he had been discharged under "other than honorable" circumstances. (2) He later challenged the VA's decision and requested a hearing. (3) Even three years after his filing, the VA had not rendered a decision. (4) Thus, Mr. Monk filed a petition for a writ of mandamus with the United States Court of Appeals for Veterans Claims (CAVC) and requested that the court "order the Secretary of Veterans Affairs... to promptly adjudicate" his claim. (5) Not only did he ask for his claim to be decided, but he also requested that the CAVC certify a class "under a class action or similar aggregate resolution procedure" so that other similarly-situated veterans could also benefit from the decision. (6) The CAVC denied Mr. Monk's claim, citing the Court's long-standing declaration that it did not have jurisdiction to hear class actions and that it was "not permitted to go beyond the jurisdictional statute set forth by Congress." (7) In April 2017, the United States Court of Appeals for the Federal Circuit held to the contrary. (8) The Federal Circuit concluded that the CAVC had abused its discretion by deciding that it lacked authority to certify and adjudicate class action cases. (9) The Federal Circuit stated that the CAVC had authority to entertain class action lawsuits "under the All Writs Act, other statutory authority, and the [CAVC's] inherent powers." (10)

Although class action lawsuits may help the CAVC decide aggregated cases, the prospect raises new and complicated issues. First, there is the question of what rules should be adopted to certify a class. (11) Even if the CAVC were to adopt a Rule 23-type rule that permits class action lawsuits, (12) the court may be required to interpret threshold class action requirements such as numerosity, commonality, typicality, and adequacy of the certified class. (13) Because disability and benefits issues are unique to each individual, it is highly unlikely that a class can be certified. (14) Although the CAVC may theoretically hear class actions, it will not likely resolve any substantive issues that the veterans seek to have addressed. (15) For example, the main issue that Mr. Monk sought the CAVC to address was why the VA was taking so long to decide his case. (16)

Mr. Monk's story--a poor, disabled veteran who put his life at risk overseas and returned only to find himself "at another war" on his own home turf against a system that was supposed to provide him medical and financial assistance (17)--is not unique. In fact, his case is just the tip of the iceberg: there are close to one million claims pending at the VA. (18) Although there is an immense backlog which slows down the whole system, another issue is that only 1.8 percent of CAVC decisions are binding precedential decisions. (19) If the CAVC increased the rate of written, precedential opinions, then it would increase the CAVC's efficiency because it would create clear rules, deter claimants from bringing forward unmeritorious claims, and reduce the number of appeals. (20) This Note proposes two mechanisms to create more precedential opinions at the CAVC: increasing the number of judges, (21) and establishing a new mechanism to convert nonprecedential opinions into precedential opinions. (22)

Part I explains how the VA's adjudicatory system functions-particularly, it shows how this unique system also exacerbates the backlog problem and how class actions will not suffice to remedy the situation. Part II balances the advantages and disadvantages of having more precedential opinions. Finally, Part III introduces two proposals to create more precedents. First, it discusses the benefits of increasing the number of judges and expanding the authority of retired judges. Second, it considers a new mechanism for converting nonbinding opinions to binding opinions.

  1. BACKGROUND

    Currently, there are over twenty million veterans who have served the United States. (23) Many veterans have paid the ultimate sacrifice, but many more veterans have been left with mental and physical scars. (24) In return for the veterans' selfless service, Congress established the VA to provide veterans and their families important resources, (25) such as health care, a benefits program to compensate injured veterans, and access to national cemeteries. (26) This Note's main focus is to examine the veterans' benefits system within the Veterans Benefits Administration--a VA administrative body that distributes injury compensation benefits and services to veterans and their families (27)--and to argue that the current system can be improved to provide claimants a faster and more efficient decisionmaking process. Although nearly 3.3 million veterans and family members are currently receiving VA benefits, close to one million claims are still waiting to be decided. (28)

    1. How the VA Adjudicates Claims for Benefits

      The VA claims adjudication process is like no other system in the United States. Based on the precept that the claims system should be favorable to military veterans, (29) the VA includes flexibility in the system which is intended to help veterans. For example, to preserve the effective date of a claim, a veteran can just send an "intent to file" claim which does not require any substantive claims. (30) Furthermore, claimants are permitted to continuously submit information before the VA makes a decision on the claim. (31) Other flexibilities require the VA to assist the veteran complete the claim application (at no cost), (32) and to give the claim a sympathetic reading. (33) The VA system does away with statutes of limitation (34) and res judicata. (35) The VA also has a low standard of proof and provides the veteran "the benefit of the doubt." (36)

      In addition to these flexibilities, the VA system provides five different levels of review. (37) A veteran (or a surviving spouse or relative) commences a claim at the VA when the veteran files a claim at a VA regional office (RO). (38) The RO "processe[s], developed], and adjudicate[s]" the claim. (39) Because the VA system is nonadversarial, (40) the VA is required to assist the veteran in gathering evidence (for example, medical records and service records). (41) The RO adjudicates the claim and decides whether to grant the benefits to the veteran. (42) If the RO denies the claim, then it provides the veteran a Rating Decision to explain the decision. (43) After the RO files the Rating Decision, the veteran has the right to submit a Notice of Disagreement within one year. (44) The VA must then respond with a Statement of the Case which explains the Rating Decision in further detail. (45) At this point, the veteran can take several routes to appeal the decision: the veteran can request that the RO conduct a de novo review or file an appeal with the Board of Veterans' Appeals (Board). (46) Although the Board is an appellate body, it "has the power to develop evidence and to find facts de novo." (47)

      If the veteran is still not satisfied with the Board's decision, the veteran can appeal to the CAVC. (48) The CAVC is only able to make legal determinations and to "affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate." (49) Unlike the RO or the Board, the CAVC is an adversarial body. (50) Even so, the VA system reserves the veteran's right to appeal, and thus the system is set up to put the veteran in a more advantageous position. (51) In essence, a veteran has "nothing to lose by appealing" to the CAVC. (52) At this stage, if either party is upset with the CAVC's decision, then they both have the right to appeal to the Federal Circuit, and then to the Supreme Court. (53)

    2. Why the Backlog Exists

      This system's "most significant shortcoming" is the delay incurred at each step of the review process. (54) The VA claims processing system's backlog totals 900,000 claims across the United States, and continues to grow. (55) At the RO stage, the average process time is 183 days; 136 days for the Board; and 416 days for the CAVC. (56) In total, the average time between the claim's initial filing to the ultimate disposition can take between five to seven years. (57)

      There are several reasons why the backlog in the VA system has ballooned over the past decade. In some sense, the delay is "inherent in the VA system." (58) The VA system's pro-claimant setup, and the favorable attitude towards the veteran's claim, naturally slows down the process. For example, the VA must provide the veteran with one full year to submit more evidence and information following to substantiate a claim. (59) Furthermore, the VA's role is not just adjudicatory. The VA's process may need to...

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