Veteranclaims’s Blog

April 3, 2009

Congressional report addresses recycling of veterans clains

Congress outlines steps which would reduce needless remands from the Veterans Court [CAVC]. In House Report 110-789 – VETERANS DISABILITY BENEFITS CLAIMS MODERNIZATION ACT OF 2008 they reported that “Section 202 is intended to encourage the CAVC to reach the merits of issues filed on brief, to stop the recycling of claims, and to provide a more timely resolution that veterans deserve on appeal and Congress intended for them to receive.” Further, “remanding a majority of cases mostly for procedural reasons without reaching the merits of issues presented is not in the spirit of Congress’ intent in creating the CAVC.”

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Section 202 is intended to encourage the CAVC to reach the merits of issues filed on brief, to stop the recycling of claims, and to provide a more timely resolution that veterans deserve on appeal and Congress intended for them to receive.

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The number of remands ordered by the CAVC concerns the Committee. While the Committee is aware that improved accuracy of adjudicated claims at the VARO and the BVA levels would significantly stem the need for the Court to remand the large number of claims, it also finds that the Court is not operating efficiently by remanding the majority of cases without addressing meritorious issues raised on appeal.
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The average disposition time for a claim appealed to the CAVC hovers around five to seven years.
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In 2007, 4,644 new cases were filed with the CAVC, up from 3,729 in 2006. With a Court currently comprised of seven judges, the average caseload is approximately 663 cases per judge. This makes it one of the busiest federal appellate courts, where the average hovers around 263 cases. During the same period, 53 percent of these cases received were filed by unrepresented, pro se veterans, a decrease from 63 percent in 2006. Also in 2007, the CAVC decided 4,877 cases of which 1,666 were dismissed on procedural grounds. There were 3,211 merit decisions, the majority of which, more than 2000, were remanded (some in part only) and 1,098 were affirmed.
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Further, remanding a majority of cases mostly for procedural reasons without reaching the merits of issues presented is not in the spirit of Congress’ intent in creating the CAVC.
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House Report 110-789 – VETERANS DISABILITY BENEFITS CLAIMS MODERNIZATION ACT OF 2008

http://www.thomas.gov/cgi-bin/cpquery/?&dbname=cp110&sid=cp110MdQpb&refer=&r_n=hr789.110&item=&sel=TOC_57516&

ANNUAL REPORTS ON WORKLOAD OF THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

Currently the CAVC voluntarily provides an annual report to Congress which it also posts on its official Web site. H.R. 5892 would mandate reporting requirements to Congress upon enactment to include the number of petitions filed, number and types of dispositions, number of oral arguments, number and status of pending appeals and petitions, summary of service performed by retired judges, number of decisions by a single judge, multi-judge and full Court panels, number of cases pending longer than 18 months, and number of oral arguments. This information should better aid the Committee in conducting more focused oversight of the backlog of pending claims and in better assessing the needed resources.

The CAVC has indicated on numerous occasions to the Committee that it would like to establish a Veterans Courthouse and Justice Center Complex and expand the number of judges from seven to nine. The Committee applauds Chief Judge Greene’s efficient and effective use of retired judges, but is concerned with its growing backlog of appeals. The additional reporting requirements would likely enhance the Committee’s ability to determine the need for additional resources at the CAVC.

MODIFICATION OF JURISDICTION AND FINALITY OF DECISIONS OF UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

H.R. 5892 would modify the jurisdiction and finality of CAVC decisions on veterans’ claims by providing the Court with additional discretion to decide all issues presented on appeal, except in the case of a reversal.

Pursuant to section 7251 of title 38, United States Code, the CVAC has exclusive jurisdiction to review decisions of the BVA. The Secretary of VA may not seek review of any of the CAVC’s decisions. The Court has the power to affirm, modify, or reverse a decision, or remand the case back to the BVA for further review, but it does not have the ability to review the ratings of disabilities claims. The majority of the cases decided are remanded back to the Board. This has seemed to impact the effectiveness of the CAVC in providing intermediate res judicata and the result is often an overly elongated appeals process for veterans’ claims.

In 2007, 4,644 new cases were filed with the CAVC, up from 3,729 in 2006. With a Court currently comprised of seven judges, the average caseload is approximately 663 cases per judge. This makes it one of the busiest federal appellate courts, where the average hovers around 263 cases. During the same period, 53 percent of these cases received were filed by unrepresented, pro se veterans, a decrease from 63 percent in 2006. Also in 2007, the CAVC decided 4,877 cases of which 1,666 were dismissed on procedural grounds. There were 3,211 merit decisions, the majority of which, more than 2000, were remanded (some in part only) and 1,098 were affirmed.

Currently the median time from filing at the CAVC to disposition is 416 days, up from 351 days in 2006. The average disposition time for a claim appealed to the CAVC hovers around five to seven years. The Court can hear cases by a single judge or in panels of no less than three judges. In 2005 the Court heard only 24 oral arguments, or one percent–the remaining cases pending were decided on brief, BVA decision, and the record available to the BVA. Since its inception, the CAVC has disposed of more than 25,000 cases. Currently, it receives approximately 300-500 cases each month. Pursuant to section 7299 of title 38, United States Code, the Court has the right to recall retired judges for 90 days of service and as noted above has made impressive progress through use of this provision.

The number of remands ordered by the CAVC concerns the Committee. While the Committee is aware that improved accuracy of adjudicated claims at the VARO and the BVA levels would significantly stem the need for the Court to remand the large number of claims, it also finds that the Court is not operating efficiently by remanding the majority of cases without addressing meritorious issues raised on appeal. The Committee does not accept the Court’s judicial economy explanation for this high remand rate.

Further, remanding a majority of cases mostly for procedural reasons without reaching the merits of issues presented is not in the spirit of Congress’ intent in creating the CAVC. Before the Court’s inception in 1988, the only means of appeal for a veteran was an appeal with the BVA, a VA entity. Veterans had no recourse for judicial review of rating decisions outside of the VA.

Finding this system of no judicial review inadequate, Congress, after significant pressure from veterans service organizations, created the CAVC (created as the United States Court of Veterans Appeals). If the Court remands the majority of its cases on procedural grounds, it does not encourage the VAROs and the BVA to improve its accuracy, to inform of mistakes in interpretation of VA laws and regulations, or afford veterans a timely resolution of claims. As the NVLSP pointed out in its May 22, 2007, testimony before the Subcommittee on Disability Assistance and Memorial Affairs:

The piecemeal adjudication policy adopted in Best [Best v. Principi, 15 Vet.App. 18, 19-20 (2001)] and Mahl [Mahl v. Principi, 15 Vet.App. 37 (2001)] may benefit the Court in the short term. By resolving only one of the issues briefed by the parties, a judge can finish an appeal in less time than would be required if he or she had to resolve all of the other disputed issues, thereby allowing the judge to turn his or her attention at an earlier time to other appeals. But the policy is myopic. Both disabled veterans and the VA are seriously harmed by how Best and Mahl contribute to the Hamster Wheel.

Moreover, the CAVC may not be saving time in the long run. Each time a veteran appeals a case that was previously remanded by the CAVC due to Best and Mahl, the Central Legal Staff and at least one judge of the Court will have to duplicate the time they expended on the case the first time around by taking the time to analyze the case for a second time.

The Committee concurs with this conclusion. Section 202 is intended to encourage the CAVC to reach the merits of issues filed on brief, to stop the recycling of claims, and to provide a more timely resolution that veterans deserve on appeal and Congress intended for them to receive.

The high percentage of remanded cases by the CAVC is not the only barrier to achieving appellate justice that our veterans face. In a statement before the Senate Committee on Veterans’ Affairs, retired judges from the CAVC indicated that judicial review by the Federal Circuit has resulted in too much judicial review and contributed greatly `to the intertwined problems of delay and backlog in finalizing decisions.’ With four levels of appeals (one administrative to the BVA) and three possible levels of judicial appeal the judges noted that, `this is just more justice than the system can bear.’ 16

[Footnote] The retired judges also noted that judicial review of one Federal intermediate appeals court by another is unique as the judges all have similar qualifications, backgrounds, nominations, and selection procedures; the difference being that CAVC judges have far more expertise in veterans’ law. 17

[Footnote] Further the retired judges have estimated that Federal Circuit Court review accounts for an increase of more than 35 percent in the CAVC caseload. 18

[Footnote] The Committee finds that these assessments warrant further oversight and policy consideration, but H.R. 5892 does not address these specific issues.

[Footnote 16: Statement of Retired Judges, Senate Committee on Veterans Affairs hearing, S. Hrg. 109-694.]

[Footnote 17: Ibid.]

[Footnote 18: Ibid.]

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