Veterans Judicial Review
Sent: Tuesday, August 22, 2000 1:24 PM
To: Bruce K. Melson
Subject: Veterans Judicial Review
In 1988, Congress enacted the Veterans Judicial Review Act (VJRA),
establishing a multi-tiered framework for adjudicating claims for veterans
The process begins when a claimant files for benefits with a regional office
(RO) of the Department of Veterans Affairs. Under the VJRA, the RO "shall
decide all questions of law and fact necessary to a decision by the [VA]
Secretary under a law that affects the provision of benefits by the
Secretary to veterans."
Upon receiving a decision from the RO, the claimant may appeal to the Board
of Veterans Appeals (BVA). The claimant triggers this appeal by filing a
Notice of Disagreement (NOD). The RO then must provide the veteran with a
Statement of the Case (SOC) wherein the VA sets forth its argument,
perception of relevant law, etc.
The BVA either issues a final decision or remands the claim to the RO for
further development and subsequent appeal.
The Court of Veterans Appeals (CVA), established under the VJRA, has
jurisdiction over appeals of BVA decisions. In turn, the Court of Appeals
for the Federal Circuit has jurisdiction over CVA decisions.
Claimant can petition the United States Supreme Court to review the decision
of the Court of Appeals for the Federal Circuit.
Nebeker: 'Vast Gap'
Ironically, the most vociferous critic of the system over the years has been
Frank Q. Nebeker, the CVA's chief judge. In his State of the Court address
at the United States Court of Veterans Appeals Third Judicial Conference in
October 1994, Nebeker said:
"The Court [of Veterans Appeals] operation has demonstrated that there is
vast gap between the theory and the practice of judicial review and it is
that gap which appears to be frustrating the original intent behind
enactment of the VJRA and the implementation of the goals of meaningful
"Imagine, if you will, the creation of a government of a new state in our
union, or one in the world of emerging nations. In that state, there is an
Executive and a Supreme Court and a Court of Appeals. At the local level,
however, there are adjudicative bodies, which initially resolve disputes.
But, the Constitution leaves the Supreme Court and the Court of Appeals with
direct authority over the local adjudicators. It is only when the Executive
can be persuaded to issue the proper order that these local adjudicators
must obey. Thus, the locals determine, quite independently of the courts,
when and how they will decide matters before them. I dare say, you know of
no viable republican form of government with such a system, and it is not
hard to see that it would not work well...
"The Court [of Veterans Appeals] simply identifies error made below by a
failure to adhere, in individual cases, to the Constitution, statutes, and
regulations which themselves reflect policy--policy freely ignored by many
initial adjudicators whose attitude is, 'I haven't been told by my boss to
change. If you don't like it-appeal it.'
"The Court has in various cases remanded matters to the [BVA] with
directions of one sort or another to bring about action at the Regional
Office. Sometimes the Board, in its discretion, remands to the RO. There
appears, however, to be no direct authority in the Board over the RO. Many
ROs appear to do what they think they must when they get around to it... The
attitude in at least some of the ROs seems to be 'I don't care what the
Court says the law is; I care only what my boss says it is...'
Nebeker urged the VA Secretary to "use your authority to place the
Department's Agencies of Original Jurisdiction [ROs] within the chain of
authority established by law in order fully to effectuate the purpose of
judicial review of decisions which are adverse to the claimants. Make them
responsible for prompt compliance with remand directions issued by the
Four years later, in another state-of-the-court address on Sept. 14, 1998,
Nebeker reprised the same themes:
"I want to briefly return to a point that I first made about four years
at the Court's third judicial conference: the serious problem of what I then
called a disconnect between the Court, the Board of Veterans' Appeals, the
VA adjudicators, and VA medical experts...
"I believe that a problem existed then and it continues today, although
there are promising signs, I might add, that initiatives within VA suggest
that the problem is being addressed...
"This brings me now to the second part, the lack of command authority
between the Court, the BVA, the regional offices, and the VHA [Veterans
Health Agency]. In a speech four years ago to this conference, I first
publicly commented on this failing. I said then and I must say today that I
cannot discern within the VA adjudication process a command chain similar,
for example, to that in the federal court system, where a superior court's
decisions are binding on lower courts and in administrative review cases, on
all levels of the agency...
"The Court of Veterans Appeals or the Board of Veterans' Appeals can
the matter, but other entities in VA do not seem to be in the chain of
control for claims adjudication...
"As an anecdote, I recently learned from a colleague that a rating
specialist at one of the ROs told him that the actual Court [of Veterans
Appeals] decisions still were not being sent to the adjudicators, the rating
specialists who make the decisions. The particular rating specialist my
colleague met said that he had never seen a Court decision..."
NOTE: Judge Nebeker, who retires Oct. 1, is scheduled to address another
judicial conference scheduled Sept. 18-19.
Society of the 5th Division