Veterans' Benefits and Due Process

• Publication year: 2021

90 Nebraska L. Rev. 388. Veterans' Benefits and Due Process

Veterans' Benefits and Due Process

Michael Serota and Michelle Singer(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 389

II. Veterans' Benefits and the Claims Adjudication Process ............................................... 392
A. A Brief History of Government Assistance to Veterans .......................................... 392
B. Claims Adjudication: Establishing Judicial Review . 395
C. The Demographics of the Veteran Population ...... 396
D. Claims Processing at the Regional Office Level ..... 397
E. Appealing a Claim ................................ 399
1. Tiers of Review ................................ 399
2. Ever-Increasing Delays ........................ 401
i. Growing Dysfunctionality .................. 401
ii. Proposals for Reform ....................... 403
III. Administrative Delay and Procedural Due Process ..... 404
A. The Right to Procedural Due Process .............. 405
1. Background ................................... 405
2. The Development of the Mathews Balancing Test ........................................... 407
3. Administrative Delay as a Violation of Procedural Due Process ........................ 409
B. Delay at the VA as a Violation of Procedural Due Process ........................................... 412
1. Veterans' Benefits as a Property Interest ....... 412
2. The Delays' Impact on Veterans' Essential and Basic Needs ................................... 413

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3. VA Delays as an Erroneous Deprivation of Property ....................................... 415
4. The Government's Interest Substantially Aligns with Veterans' Interests ....................... 417

IV. The Need for a Judicial Remedy ....................... 420
A. Injunctive Relief in the Context of Administrative Delay ............................................. 421
B. Mandatory Deadlines as Injunctive Relief for Administrative Delay .............................. 428

V. Conclusion ............................................ 433

I. INTRODUCTION

"When men and women sign up to put on the uniform and defend our country, they sign a contract. We need to make sure that America is living up to our part of that contract."(fn1)

At the culmination of the Civil War, President Abraham Lincoln called on Congress "to care for him who shall have borne the battle and for his widow, and his orphan."(fn2) These words have become emblematic of one of America's greatest moral obligations: to care for its veterans, who have risked their lives to protect our nation. In return for their service, Congress created the Department of Veterans Affairs (VA) to administer a number of benefits programs that support American veterans and their families.(fn3) These programs reflect the deep sense of pride and gratitude that Americans feel toward the nation's service members. As the VA proudly proclaims on its website, "The United States has the most comprehensive system of assistance for veterans of any nation in the world."(fn4)

Given both the size of the Armed Forces and the regularity with which it is utilized, the veterans' benefits system plays a central role in American life. Nearly 3.3 million people currently receive benefits from the VA, including veterans who became disabled while serving, survivors of service members who died during active duty or while serving in combat, and low-income veterans who receive pension benefits.(fn5)

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The vast majority of veterans' benefits are disability benefits that compensate veterans for their average impairment in earning capacity and for a reduction in their quality of life due to an injury incurred during service.(fn6) About 3.1 million veterans currently receive disability benefits,(fn7) which play an essential-and oftentimes life-sustaining-role in their lives.

But despite the importance of veterans' benefits and the concomitant necessity that they be dispensed in a timely manner, the VA's system for adjudicating benefits claims has become nothing short of a national disgrace. The VA has a backlog of nearly one million claims, and the current VA Secretary, Eric Shinseki, has estimated that claims will likely increase by 30% in 2011.(fn8) Without a systemic overhaul, the VA predicts that by 2015, some 2.6 million claims will be backlogged-a 250% increase in just five years.(fn9)

Even more staggering than the backlog, however, are the VA's delays in deciding benefits claims, particularly those decisions that are appealed. By the VA's own estimate, a veteran seeking an initial decision on a disability benefits claim must wait an average of nearly six months for the VA to accept or reject the claim,(fn10) while thousands of veterans will wait at least twice as long.(fn11) Unfortunately for many veterans, this is only the beginning of their wait for a benefits decision. Approximately 12% of those veterans who file claims are denied each year, forcing those veterans to enter the VA's dreaded appellate

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system, derided as "the hamster wheel" by many veterans.(fn12) The VA's appellate system takes approximately 4.4 years to adjudicate an average benefits appeal,(fn13) and, even then, many cases are remanded, forcing veterans to begin the process all over again.(fn14)

These delays take a severe toll on our disabled veterans, presumably exacerbating the effects of the financial hardship and post-traumatic stress disorder that many already experience and that might be the very subject of their claim for benefits.(fn15) Because disability benefits compensate veterans for their impairment in earning capacity, the failure to receive those benefits amounts to an untenable situation. A lack of crucial financial support just as a veteran is reentering civilian life can diminish a veteran's ability to buy food and clothing for himself and his family, to make mortgage payments, and to avoid serious mental health problems. And this combined financial and psychological impact only contributes to the foreclosure, divorce, and even suicide that is prominent among veterans.(fn16)

The systemic delays veterans are forced to confront in the VA's claims adjudication process are not only morally unconscionable, but they also violate the Due Process Clause of the Fifth Amendment. The Constitution, which empowers the President to send the Armed Forces into battle, also forbids the executive branch from depriving a veteran of "property" without providing "due process of law."(fn17) It is well established that statutory entitlements, such as veterans' disability benefits, are a constitutionally protected form of "property," and that as a result, the government may not deprive recipients of their entitlements without applying fair procedures.(fn18) More recently, courts have also found that applicants for entitlements-those individuals whom the government has yet to adjudicate as qualifying recipients-possess a constitutionally protected property interest that

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affords them a fair adjudication of their entitlement claims.(fn19) In this Article, we argue that the VA's nearly five-year delays in adjudicating claims for disability benefits that affect the essential and basic needs of veterans fail to provide veterans with the fair adjudication to which they are entitled. As a result, we conclude that the judiciary must take remedial action. We then explain why an equitable injunction directing the VA to remedy these delays within a fixed deadline is the only way to adequately safeguard the due process rights of veterans. This Article proceeds as follows: Part II provides the history, background, and mechanics of the VA and its claims adjudication process. Part III analyzes the claims adjudication process in light of the Due Process Clause of the Fifth Amendment. Part IV discusses the judiciary's role in remedying systemic constitutional problems, and then proposes an injunction to resolve the VA's widespread due process violations.

II. VETERANS' BENEFITS AND THE CLAIMS ADJUDICATION PROCESS

A. A Brief History of Government Assistance to Veterans

The practice of providing benefits to American service members is deeply rooted in American history. In fact, veterans' benefits predate the founding of the United States: the first recorded provision of veterans' benefits in America occurred in 1636 when the Plymouth Colony offered money to those who became disabled while defending the colony against Native Americans.(fn20) A century later, the Continental Congress tried to recruit and retain soldiers by passing a law granting veterans "half pay for life in cases of loss of limb or other serious disa-bility."(fn21) In 1789, the same year the U.S. Constitution was ratified, Congress enacted the first federal pension for veterans.(fn22)

In 1817, President James Monroe proposed granting pensions to indigent veterans of both the Revolutionary War and the War of 1812.(fn23) Although some members of Congress argued that establishing a pension system might be too costly, Monroe's program eventually

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passed, and over 15,000 veterans began receiving compensation.(fn24) Over the next decade, the implementation of Monroe's pension system consumed an increasing portion of the nation's finances, and in 1833, Congress established the Bureau of Pensions, the first administrative entity dedicated solely to assisting veterans.(fn25) This arrangement...