Veterans law

• Pages: 309-328

309

Veterans Law1

CHAPTER 8

1. J ames D. Ridgway, Partner, Bergmann & Moore, LLC.

INTRODUCTION

Veterans law concerns the award of benefits to former members of the

military and their dependents. Although there are many types of benefits,

including health care, education, and employment assistance, the overwhelming

majority of claims contested at both the Veterans Affairs’ agency level and the

federal courts involve compensation for disabilities related to an injury, dis-

ease, or event in service. The area is defined by both its massive scale—

involving millions of claims and millions of expert medical opinions each

year—and the special solicitude for claimants that applies to both the inter-

pretation of governing authorities and the agency’s duty to administer the

process in a “veteran friendly” manner.

With the Veterans Appeals Improvement and Modernization Act (VAIMA)

going into effect in 2017, there was no question that 2019 was going to be a

historic year for veterans law as legal questions worked through the system.

However, this transformation might well end up being judged an also-ran

when compared to other, significant developments in the area, including a

renewed focus on interpretive rigor and the implementation of class actions

at the Court of Appeals for Veterans Claims (CAVC). If there were an

overarching theme of the year, it is that veterans law is filled with emerging

issues that seem far from reaching satisfactory resolutions. Although the law

is never static, the near future of veterans law seems likely to be more dy-

namic than the recent past.

310 Developments in Administrative Law and Regulatory Practice

2. 139 S. Ct. 2400 (2019).

3. See supra at 3-4.

4. 513 U.S. 115 (1994).

5. See Kisor v. Wilkie (Kisor cert.), petition for cert. filed, No. 181–5 (U.S.

June 29, 2018), available at http://www.supremecourt.gov/DocketPDF/18/

181–5/51909/20180629164148460_Kisor.cert.pet.pdf; cert. granted in

part 139 S. Ct. 657 (2018).

6. Kisor, 139 S. Ct. at 2414.

7. See James D . Ridgway, Toward a Less Adversarial Relationship Between

Chevron and Gardner, 9 U. MASS. L. REV. 388, 3984–02 (2014) (collecting

examples).

I. JUDICIAL DEVELOPMENTS

A. Interpretation of Statutes and Regulations

The Supreme Court’s decision in Kisor v. Wilkie2 was one of the biggest

developments in general administrative law in 2019, and it is thoroughly

discussed elsewhere in this volume.3 However, Kisor was a veterans benefits

case and its significance in this area is worth a closer look. Initially, the case

is important for what it did not decide. There was a second issue in the

certiorari petition that the Court declined to accept: the relationship between

the principles of agency deference and the Brown v. Gardner4 rule that ambi-

guity in veterans benefits laws is to be resolved in favor of claimants.5 This

relationship itself has long been unsettled, as courts have generally avoided

resolving the issue ever since the judicial review of veterans claims began

thirty years ago. Kisor seems to push courts toward a more methodical and

transparent textual analysis, which itself could result in forcing the issue of

where Gardner fits in the general interpretive framework.

As to the holding of Kisor, there are two aspects that are likely to have a

particular impact in veterans law. First, the opinion indicates that courts should

apply much more thought and rigor to the question of whether a regulation

(and presumably a statute as well) is unambiguous. Justice Kagen’s opinion

emphasizes “the possibility of deference can arise only if a regulation is genu-

inely ambiguous. And when we use that term, we mean it—genuinely ambigu-

ous, even after a court has resorted to all the standard tools of interpretation.”6

If the hurdle for declaring a text unambiguous has been raised, this could be

particularly important in veterans law, which has a recurrent strain of cases in

which both sides of divided judicial panels have declared statutes and regula-

tions unambiguous while still reaching opposite interpretations.7 This move of