Lady Louise Byron is 80 years old, has terminal lung cancer and is stuck on what many veterans call “the hamster wheel of justice” in their pursuit of disability benefits.
By February of this year, her claim for benefits due to the death of her Army veteran husband had been considered 10 times — three times at the Veterans Administration’s regional level and seven times at the system’s appellate levels during 15 years of active litigation.
Backed by major veterans organizations, Byron and other veterans, in separate actions, are asking the U.S. Court of Appeals for the Federal Circuit to help them and similarly situated veterans to end the repeated remands of their claims.
Congress, they argue, gave the U.S. Court of Appeals for Veterans Claims express authority in 2002 to reverse denials of claims by the Board of Veterans Appeals when those denials were clearly erroneous. The court’s narrow interpretation of its authority, they contend, is thwarting Congress’ goal of expediting the painfully long claims process. They do not seek reversals in every appeal to the court, but only when a veteran’s record is complete, when the weight of the evidence supports the veteran and when a remand would be futile.
Every remand adds at least a year to the review process. And the Veterans Court remands a whopping 70 percent of the appeals it receives back to the board. The board, in turn, remands a huge number of those cases back to the regional level, where the cycle begins anew. Veterans win outright reversals in less than 5 percent of their appeals annually.
“I believe the court is simply way too reticent to reverse and award benefits, and I firmly believe they have the power to do so,” said William Fox, former dean of Catholic University of America Columbus School of Law and a visiting professor at Penn State Dickinson School of Law.. “This is a very significant problem. It’s particularly tragic where you have these poor people dying before the system can even give a decision on their benefit.”
Established by Congress almost 24 years ago as an Article I court, the Court of Veterans Appeals was designed specifically to become expert in veterans law, Fox said. “They actually have broader powers as a kind of super-administrative agency than they have ever been willing to admit,” he said. “But they view themselves as an Article III court.”
However, Chief Judge Bruce Kasold of the Veterans Court, while sensitive to delays in the whole claims process, said, “I think if we went down the road of truly looking for reversals, I believe an overwhelming number of these [denials] would be affirmed.”
TIME AND NUMBERS
The court reviews decisions by the Board of Veterans Appeals. The board’s most common error is failure to provide an adequate “reason and basis” for its denials of benefits, Kasold said. That requirement, he said, is imposed by law and is a safeguard for the veteran.
“We really have to understand how the board came out with its decision and that means we don’t have to go to the level of having a firm conviction that it’s wrong,” Kasold said. “You can remand the claim for further development.”
But the Veterans Court’s own annual statistics appear to support the veterans’ organizations arguments that something is out of whack with the disposition of veterans’ appeals. Experts inside and outside of the court generally agree that it sends 70 percent of the decisions back to the board.
In fiscal year 2011, the court made decisions on the merits in 3,892 cases. Roughly 2,724 cases went back to the board; veterans won 195 reversals; and the board was affirmed in 973 decisions. The 5 percent reversal rate has been fairly consistent for years.
“No doubt appellants would like to see that higher,” said the chief judge of the reversal rate. But he said that remands can often result in subsequent awards of benefits by the board, awards based on the proper development of the facts. The Veterans Administration (V.A.) never responded to phone and e-mail requests for statistics on benefits awarded by the board after remands from the court.
Kasold and his predecessor have repeatedly urged Congress to create a commission to examine the judicial appellate process for veterans.
While the high remand rate reflects the “terrible track record” of the Board of Veterans Appeals in deciding veterans’ appeals, said Bart Stichman, executive director of the National Veterans Legal Services Program, the rate also shows the court itself isn’t doing what the federal judicial review statute requires.
“They seem to constantly require the agency to set a perfect record before they’ll exercise the judgment they’re supposed to exercise — that is the legal problem,” Stichman said.
In 2002, Congress amended the Veterans Benefits Act to address delays caused by the continual remands. The amendments expressly said the court shall “hold unlawful and set aside or reverse” any material finding of fact adverse to the veteran if the finding is “clearly erroneous.” The court also was directed to examine whether the agency had, as required by law, given the veteran the benefit of the doubt when positive and negative evidence concerning any part of his claim was approximately in balance.
Many veterans organizations believe those amendments and their legislative history make clear that Congress intended the court to take a more aggressive and less deferential role in reviewing facts found by the Board of Veterans Appeals. The law does prohibit the court from engaging in de novo fact finding.
The Federal Circuit appeals by Byron and two other veterans are a concerted effort by national veterans organizations to persuade the Federal Circuit that it should make clear to the veterans court what those 2002 amendments require.
In Byron’s case, her lawyer, Edward Reines of Weil, Gotshal & Manges, is seeking en banc review in hopes of overturning a panel ruling that he contends misapplied the amendments and another statute allowing the Veterans Court to reverse in cases of “unreasonable delay.” The Paralyzed Veterans of America and the Disabled American Veterans filed supporting briefs.
Throughout her 15 years of litigation, Byron produced medical affidavits from five of her physicist husband’s treating doctors stating that his non-Hodgkin’s lymphoma, which killed him at age 45, resulted from repeated radiation exposure. And she produced affidavits from witnesses who knew of his assignment in 1953 to a highly classified project for atmospheric nuclear weapons testing in Nevada.
Despite her evidence, the Board of Veterans Appeals approved only an indirect service connection to her husband’s cancer. Because a direct service connection entitled her to an earlier effective date for benefits, she appealed and sought reversal from the Veterans Court. The V.A., according to Reines, never contested her factual evidence and only said it had no dosimeter record for her husband.
Because the board erred by not writing a decision specifically on the direct service connection aspect of the claim, the court said it had to remand the case.
“All of the evidence supports us, and all [the agency] relies on is the absence of their own records proving it,” Reines said. “They don’t say, ‘Our records show he wasn’t there.’ I say, ‘You have no evidence and we have a lot of evidence and therefore you lose.’ ”
Most veterans accept the remands. Byron balked. With only about two years left to live, she chose to pursue the legal principle.
A three-judge Federal Circuit panel ruled, “It is not enough for Ms. Byron to claim that all of the evidence of record supports her position. The Board must still make an initial determination of whether Ms. Byron has sufficiently supported a claim for an earlier effective date.” The Veterans Court could not make that determination, the panel said, because it cannot make de novo fact-finding.
Futile and wrong on the law, professor Fox contends. “There is no more factual evidence to develop,” he said. “Lady Byron’s case cries out for reversal. There is language in the act that prohibits the court from conducting a trial de novo, but I don’t think that’s what we’re talking about when we talk about reversals versus remands. I know the judges disagree with me.”
Former Chief Judge William Greene said, “The board has to find the facts. Sometimes [veterans] may think their argument merits [reversal], but if we conclude there is another permissible view of the evidence, then the board has to weigh that evidence.
“We look at the complete record, but it consists of facts found.”
The Federal Circuit on May 3 requested a response from the V.A. to Byron’s en banc request.
In the case of Ronald Deloach, his lawyers, Igor Timofeyev and Stephen Kinnaird of Paul Hastings, assisted by Stichman, argue that the Veterans Court misinterpreted the prohibition on judicial fact-finding, thus preventing it from examining the medical evidence and reversing the board’s decision.
Three years after leaving the Army where he was a neuropsychiatric specialist, Deloach was hospitalized for schizophrenia and recurrent breaks with reality, which, his treating physician believed, had begun during his service. He was in and out of hospitals in subsequent years, and in 2001 filed a disability claim.
His claim was before the board for five years, reviewed three times and remanded twice for medical exams. The board in 2008 said the preponderance of evidence weighed against finding a direct service connection to his condition.
The Veterans Court in 2011 said that to reverse the board would require weighing the opinions of Deloach’s first two doctors against other evidence in the record, and that would be prohibited fact-finding. The court ruled that the board had provided an inadequate explanation for its decision, and remanded the case for an additional medical exam — Deloach’s fourth by a V.A. doctor.
The American Legion, the Military Order of the Purple Heart and Vietnam Veterans of America also urge the Federal Circuit to clarify the standards the Veterans Court should apply in reviewing facts found by the board and in reversing when clear errors are found.
Even though Congress could address the remand-reverse problem, it seems to have little interest right now, said Fox, who has been studying the system and representing veterans for two decades and is a leading authority on veterans’ law.
“I’ve been so frustrated by this whole system I’m almost to the point that I’d like to see the whole thing burn down flat and then develop a proper system for veterans’ benefits,” he said. “There are a lot of people starting to feel very similarly.”
Marcia Coyle can be contacted at firstname.lastname@example.org.