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Veterans of past wars dating to World War II are inundating federal courts with disability appeals as they age and their conditions worsen. But the courts will face an explosion of appeals within two to three years as hundreds of thousands of disabled Iraq and Afghanistan veterans file disability claims for a vast array of physical and mental injuries. “It has to be coming in almost tidal-wave proportions,” says Paul Michel, chief judge of the U.S. Court of Appeals for the Federal Circuit. “We’ve had over the past decade some real peaks and valleys in veterans’ cases. We have what looks to be a peak that keeps rising.” A crushing caseload brought on by appeals from Iraq and Afghanistan vets could affect both the timeliness and quality of decisions, not only in veterans’ cases but in patent appeals and other categories of appeals handled by the court, he says. “There is an increased risk of making an erroneous decision because of the pressure of trying to keep up with the workload with the same number of judges,” Michel says. “If the court is flooded with vets’ cases, it will be harder to be prompt in each other category of cases. The more pressured we are with quantity [of appeals], the greater risk that we will misanalyze something.” Michel says he doesn’t believe the risk is high now, but it “will definitely creep upward” if the court is overwhelmed by a large number of veterans’ disability appeals. “The appellate court, which is the last chance to get it right, might not get it right,” he says. FEELING THE WEIGHT While it is known for hearing patent appeals, the Federal Circuit also hears veterans’ benefit appeals from the U.S. Court of Appeals for Veterans Claims. For the first time, pending veterans’ appeals now outnumber pending patent appeals. As of Jan. 1, the Federal Circuit had 377 pending veterans’ appeals and 362 pending patent appeals, according to court statistics. “Sometimes people say, �You’re a patent court,’” Michel says. “The current numbers suggest we’re better characterized as a veterans’ court if you just look at the number of cases pending.” But the current increase doesn’t yet include appeals from veterans of the Iraq and Afghanistan wars, because soldiers receive free medical care while in the service, and disability appeals usually take two to three years before they reach the Federal Circuit, Michel says. Estimating the future increase in appeals is difficult because of numerous variables, but some rough estimates can be made based on past trends, Michel says. Historically, the Federal Circuit has received appeals of about 15 percent of the decisions made by the U.S. Court of Appeals for Veterans Claims. That court, which hears appeals from the Board of Veterans’ Appeals within the Department of Veterans Affairs, has already seen its case filings double over the past six years to more than 4,600 new cases filed last fiscal year, a record high for the court. If appeal rates continue at their current pace, then the Federal Circuit can expect to receive more than 700 disability benefit appeals from the 4,877 cases decided last fiscal year by the U.S. Court of Appeals for Veterans Claims. But the real crush of cases is further down the ladder at the VA, which has already received more than 223,000 disability claims from about 755,000 veterans who served in Iraq or Afghanistan. The largest categories of disability claims filed thus far have been for ringing in the ears caused by tinnitus, cervical strain, other hearing problems, and post-traumatic stress disorder. The department took an average of almost two years to resolve appeals in the 2006 fiscal year, when about 378,000 claims were still pending, according to a Government Accountability Office report last year. The Board of Veterans’ Appeals denied more than 18,000 disability claims in fiscal year 2006, up from 13,000 in fiscal 2005, according to court statistics. Roughly 20 percent of those denials are appealed to the U.S. Court of Appeals for Veterans Claims, which is already feeling the weight from its burgeoning caseload. The median time for disposition of cases at the court increased from 351 days in 2006 to 416 days last fiscal year, according to court statistics. “As the number of [board] decisions and total denials increases, we expect the court’s incoming caseload to increase proportionally,” Chief Judge William Greene Jr. testified last November before the Senate Committee on Veterans’ Affairs. Disposition rates haven’t risen yet at the Federal Circuit, where veterans’ appeals took a median time of more than eight months to be disposed last fiscal year, the same rate as in 2006, according to court statistics. But Michel expects the number of appeals filed with the court will begin to rise this spring or summer and keep increasing at a drastic pace. To address its growing caseload, the Federal Circuit has scheduled more panels each month and used visiting federal judges to help fill panels. The court, which has a full complement of 12 active judges, often rules on a test case from a group of veterans’ appeals that raise similar issues before issuing summary dispositions for the remainder, a practice that the U.S. Court of Appeals for Veterans Claims is considering to speed up its decisions. In its budget request last year to Congress, the Federal Circuit sought additional funding for a fourth law clerk for each active judge, but the funding wasn’t included in the court’s $27 million budget, which was flat except for a small increase for inflation, Michel says. At the U.S. Court of Appeals for Veterans Claims, each of the seven active judges has received a fourth law clerk, and more attorneys have been added to the court’s central legal staff. Greene also recalled five retired judges last year to serve for 90-day periods to help hear cases. Greene, who has served on the court since 1997 and been chief judge since 2005, is supporting a bill introduced last September by Sen. Daniel Akaka (D-Hawaii) that would increase the court’s size from seven to nine active judges. The court had temporary authorization for nine judges from 2000 to 2004. Even though Akaka chairs the committee, his bill hasn’t attracted any co-sponsors or moved forward since it was filed last year. Akaka’s press secretary didn’t respond to a request for comment. Greene, who didn’t respond to several requests for comment, is also backing a study to determine the cost and feasibility of expanding the court’s crowded facilities at 625 Indiana Ave. N.W. in the District. �THE HAMSTER WHEEL’ Disability appeals are increasing in part because veterans are appealing not only the total denial of benefits but also decisions with lower disability ratings or later effective dates for the awarding of benefits. A disability rating is a percentage based on the extent of a veteran’s injuries and the resulting impairment of his ability to work as a civilian. Even though more legal assistance is available now from veterans’ organizations, pro bono attorneys, and private attorneys, more than half of the disability cases appealed to the U.S. Court of Appeals for Veterans Claims still come from veterans without representation, according to court statistics. Many veterans struggle to navigate an incredibly complex appellate system known as the “hamster wheel,” where cases often bounce back and forth for years before a final decision is reached, leaving thousands of veterans in limbo on their disability claims, says David Gorman, executive director of Disabled American Veterans. “There is just this vicious cycle of inaction and unwillingness for whatever reason to make a [final] decision,” he says. “It doesn’t help the VA. It doesn’t help the veteran. If [federal courts] have the information to rule on it, then decide for or against it.” Michel says the Federal Circuit cannot review factual issues in veterans’ cases and often must defer to regulatory interpretations made by the VA. Many veterans’ advocates predict that appeals, including those over post-traumatic stress disorder and other mental illnesses, will become much more complex as thousands of Iraq and Afghanistan veterans continue to return home, leave the service, and file disability claims. While it is relatively straightforward to determine a disability rating for a lost limb, quantifying the level of impairment from a mental illness is much more difficult. “I think there will be an onslaught of PTSD cases,” Gorman says. “That is going to continue to manifest itself in veterans five, 10, 20, 30 years into the future.”
Brendan Smith can be contacted at [email protected].

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