As a veterans’ benefits lawyer I applaud the intentions of our elected officials in Congress when try to address the problems in the VA appeals process. But unfortunately, most members of Congress lack the day-to-day experience in representing veterans in their appeals before the VA or the U.S. Court of Appeals for Veterans Claims.
I understand that the House passed H.R. 5620 and that Senator Blumenthal has proposed similar legislation in the Senate. Notwithstanding the good intentions, I believe the proposed legislation is flawed and should not be passed. I say this based on deep and extensive experience in navigating the VA benefits process on behalf of disabled veterans for most of the past decade.
Of all of the attorneys in New Jersey, I have handled more cases at the U.S. Court of Appeals for Veterans Claims than all other attorneys in New Jersey combined. I lecture widely on veterans topics and I teach CLE on veterans’ benefits law to attorneys nationwide. I have been published in the area of veterans’ law and have co-authored two books on veterans’ benefits published by NBI, Inc.
My latest book, Betrayal of Honor, is scheduled for release soon by Sutton Hart Press. It is this extensive experience that informs my commentary on the proposed legislation.
In my professional opinion, the legislation in its current form will discourage a veteran from exercising his or her right to judicial review before the United States Court of Appeals for Veterans Claims (CAVC). Specifically, the legislation does not extend effective date relief to CAVC decisions.
VA has also taken the position that a veteran cannot seek review of a BVA denial before CAVC and exercise the right to submit new evidence before VA within a year of that decision to preserve the original effective date. If VA's intent is fulfilled, it would force a veteran to choose between seeking review of legal error in the BVA decision or filing a supplemental claim in hope of preserving the effective date.
This result is not only contrary to the veteran-friendly scheme designed by Congress, it potentially prevents the court from correcting prejudicial legal errors, e.g., statutory violations or misinterpretations of law.
Second, the legislation does not provide for effective docket management. Specifically, a veteran who chooses to submit new evidence before BVA, but does not want to have a personal hearing, will be forced to wait with those veterans who are requesting a hearing. BVA currently has a backlog of over 70,000 hearing requests and can usually accommodate only about 11,000 hearings per year. Veterans who only want to submit new evidence will be unfairly delayed.
Finally, the legislation does not provide a realistic plan for how the more than 450,000 pending appeals will be handled in a timely and fair fashion.
For these reasons I am urging my clients and everyone who cares about veterans to write to their U.S. Senators and urge that the proposed legislation be rejected.