One of the biggest frustrations disabled veterans face when seeking VA disability benefits is the length of time it takes to receive a decision. As a veterans’ benefits attorney, one of the biggest questions we often receive is how long will this take? As a practitioner near to veterans’ benefits, this question is always difficult to answer. The length of time varies depending on the Regional Office and the complexity of the case. As attorneys, we can develop strong evidence in support of a claim and make strong arguments to support the claim. However, our ability to control the time frame that it takes to resolve a case is more difficult. VA largely controls the time frames, and right now the backlog of veterans seeking VA benefits is astounding. The delay is in part due to the backlog, which in turn is caused by VA’s inefficiencies, lack of staff, and other structural problems.
Recently, the Wall Street Journal gave an opinion that the problem for the delay can be traced to the creation in 1988 of the U.S. Court of Appeals for Veterans’ Claims. The journal opined that the veteran’s Appellate Court does not have the power according to its original mandate to hear aggregated cases or class action-type cases. The Court has the authority only to review individual cases involving final Board denials. This makes it difficult for groups of veterans who are similarly situated to file lawsuits on behalf of other veterans seeking prompt decisions or other mass solutions for veteran problems.
Although I agree that allowing class action-type lawsuits or aggregate cases would certainly allow the Court to address structural problems at the VA that are contributing to the backlog, I disagree that the Court is the reason for the delay in the backlog.
In fact, after the creation of the U.S. Court of Appeals for Veterans’ Claims, we have seen a steady increase in the “allowance rate” at the Board of Veterans’ Appeals. The allowance rate means the rate at which the Board grants benefits in favor of veterans. Prior to the creation of the Court, the Board of Veterans’ Appeals was the last step in the appellate process within the federal agency. The Board had no federal judiciary oversight over its decisions and could be as egregious and malicious as it wanted without concern of being overturned on appellate review by a federal judge.
With the creation of the court, which gave the federal judiciary appellate oversight over the Board’s final denials of veterans’ claims, their rate of favorable decisions has increased. This has benefitted veterans and it also gave veterans access to attorneys who could represent them on remand from the court.
Until 2007, attorneys could not represent veterans until after a final Board denial. This meant that an attorney could only represent the veteran at the U.S. Court of Appeals after a Board denial and then on remand at the federal agency thereafter. So this has proven to be a benefit to veterans in the sense that they acquired access to skilled legal practitioners.
But overall, any change that allows judicial oversight over the federal agency can only benefit veterans.