Economics and Austerity Relative to Veterans' Claims and the Veterans Appeal Process

• Author: David Kimball Stephenson
• Position: J.D. Candidate, University of the Pacific, McGeorge School of Law, 2013; B.A., University of California, Davis, 2009, Staff Sergeant (Retired) U.S. Air Force
• Pages: 179-210

2012] VETERANS CLAIMS AND APPEAL PROCESS 179

ECONOMICS AND AUSTERITY RELATIVE TO VETERANS’

CLAIMS AND THE VETERANS APPEAL PROCESS

DAVID KIMBALL STEPHENSON*

I. Introduction

Providing for veterans who have selflessly served and dearly

sacrificed is firmly rooted in our nation’s history. Remembering the

importance of this concept, lest we forget or overlook the noblest of all

sacrifices, we must persevere to further the goals of a grateful nation in a

responsible way.

Veterans who served this country in any capacity are a special class

of individuals who earned the right to have an appellate system that is

efficient and responsive to their appeals for relief. In this regard, the

government has continuously modified the veterans’ claims and appellate

system to promote responsiveness and efficiency in the veterans’ claims

system. One such modification occurred in 1988 when judicial review

was inserted in the veterans’ claims process.1 Despite the noble attempts

to improve upon the veterans’ claims system, significant delays in claim

adjudication persist to this day.2 The purpose of this article is to

illustrate with current empirical data and historical research that

increased efficiency in the existing veterans’ claims process can be

achieved by implementing a reasonable claim time limit to address the

delays in claim adjudication. In addition to increased efficiency, this

time limit would generate fiscal savings that would be preferable to

savings generated from blanket cuts to federal spending and veterans’

benefits.

To address the possibility of implementing a time limit in veterans

claims, Part II-A discusses the legislative evolution of veterans’

* J.D. Candidate, University of the Pacific, McGeorge School of Law, 2013; B.A.,

University of California, Davis, 2009, Staff Sergeant (Retired) U.S. Air Force.

1 See Veterans Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988)

[hereinafter VJRA].

2 See, e.g., U.S. GOV’T ACCOUNTABILITY OFFICE, GAO 10-213, VETERANS’ DIS ABILITY

BENEFITS: FURTHER EVALUATION OF ONGOING INITIATIVES COULD HELP IDENTIFY

EFFECTIVE APPROACHES FOR IMPROVING CLAIMS PROCESSING [hereinafter GAO 10-23]

(2010); The Impact of Operation Iraqi Freedom and Operation Enduring Freedom on the

United States Department of Veterans Affairs: Hearing before the Subcomm. of the H.

Comm. of Veterans Affairs, 110th Cong. 48 (2007) [hereinafter Impact of War on VA]

(statement of Professor Linda Bilmes, Harvard Univ.).

180 MILITARY LAW REVIEW [Vol. 211

disability compensation law in relation to our evolving national

economy. Part II-B discusses different legal theories that have evolved to

govern the adjudication of veterans’ disability compensation appeals.

Part II-C connects the legal and legislative evolution by providing a brief

structural overview of the current veterans’ benefit-appellate system. Part

III discusses a few of the appellate and structural changes the Veteran’s

Administration (VA) has made to address problem areas within its

disability and compensation claims system. Part IV briefly describes the

demographic characteristics of veterans who appealed their claims to the

Court of Appeals for Veterans Claims (CAVC) in fiscal year (FY) 2010.

Part V argues for the implementation of a statute of repose in our

veterans’ disability claim process to address the shortcomings of the

current structure. Clearly, any change in the veterans’ appellate process

could have vast fiscal implications.3 However, it is our collective

obligation as Americans to explore the premises underlying the structure

of the veterans’ benefits and appellate system in order to promote

efficiency, responsibility, and predictability in this unique system.

II: The Legislative Evolution of Veterans’ Disability Pensions

In 1781, George Washington wrote, “We ought not to look back,

unless it is to derive useful lessons from past errors and for the purpose

of profiting by dear bought experience.”4 A system that originally began

as a simple, straight-forward approach to administer veterans’ disability

compensation has since morphed into a complex administrative

organism.5 Consequently, the evolving legislative scheme that governs

the current veterans’ disability appellate system has had many intricate

developments.6 To address this historical complexity, it is necessary to

3 See, e.g., VA PERFORMANCE AND ACCOUNTABILITY REPORT FY 2010, at I-92

[hereinafter VA PAR 2010], available at http://www.va.gov/budget/report/archive/FY-

2010-VAPerformanceAccountabilityReport.zip (noting the increased net cost of a billion

dollars as a result of implementing Agent Orange benefits).

4 Letter from George Washington, to John Armstrong (Mar. 26, 1781) (The George

Washington Papers at the Library of Congress), available at http://memory.loc.gov/cgi-

bin/query/r?ammem/mgw:@field(DOCID+@lit(gw210400.

5 Linda Bilmes, Soldiers Returning from Iraq and Afghanistan: The Long-term Costs of

providing Veterans Medical Care and Disability Benefits 6 (John F. Kennedy Sch. of

Gov., Harvard Univ., Working Paper RWP07-001), available at http://web.hks.harvard.

edu/publications/workingpapers/citation.aspx?PubId=4329 (describing the disability

compensation process as lengthy and complicated).

6 See WILLIAM H. GLASSON, THE HISTORY OF MILITARY PENSION LEGISLATION IN THE

UNITED STATES 10 (New York: Columbia Univ. Press, 1900). From the founding of the

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discuss three areas: the legislative evolution that has led to the modern

day VA disability compensation and appellate system; the evolution of

various legal theories that govern the adjudication of veterans’ claims;

and a brief overview of the current disability claims system.

A. The Legislative Evolution of Veterans’ Disability Pensions

The roots of the modern day veterans’ disability system can be traced

back to antiquity, when Greece provided pensions to soldiers who could

prove permanent injury.7 Similar legislation enacted in Elizabethan

England provided pensions to veterans who served after March 1588, the

year the English defeated the Spanish Armada.8 In the United States, this

tradition dates back to 1636, when Plymouth Colony declared that any

soldier maimed in defense of the Colony would be “maintained

competently” for life at the expense of the public treasury.9 In 1776, the

Continental Congress continued this commitment to veterans by

announcing it would provide disability compensation to soldiers injured

in the struggle for American independence.10 Although benevolent, these

pieces of legislation provided little substantive guidance on how to

evaluate or adjudicate a veteran’s disability claim.11

In 1792, Congress began providing substance to this issue by passing

the Invalid Pension Act of 1792 (the 1792 Act), which promised lifetime

disability compensation payments to veterans injured in the defense of

nation until the mid-20th century, veterans’ disability pensions were divided into service

pensions and disability pensions, with the latter being known as “invalid pensions.” See

id. Because the term “invalid pension” is no longer used, this article will refer to such

pensions as a “disability compensation” when possible to limit confusion.

7 Douglass C. McMurtrie, The Historical Development of Public Provisions for the

Disabled Soldier, 26 INTERSTATE MED. J., Feb. 1919, at 109.

8 An Acte for the Relief of Souldiours, 35 Eliz., c.4 (1588).

9 Records of the Colony of New Plymouth in New England, vol. 11 [Laws 1623–1682],

13, 106, 182. See Daniel Vickers, Competency and Competition: Economic Culture in

Early America, 47 WM. & MARY Q., Jan. 1990, at 3, 3–10 (equating the colonial notion of

competent maintenance to subsistence).

10 Worthington C. Ford et al., Journals of the Continental Congress, 1774–1789 (1914)

(edited from the Original Records in the Library of Congress, vol. 5, at 702–05)

(Washington: GPO, 1904–37).

11 See ROBERT MAYO & FERDINAND MOULTON, ARMY AND NAVY PENSION LAWS OF THE

UNITED STATES 1–2 (Lucas Brothers, 2d ed. 1854) (detailing the early procedures used to

adjudicate colonial claims for disability compensation).