Is the VA Proposing Another Shell Game?

The DVA-proposed Veterans Benefit Programs Improvement Act of 2010 is drawing fire from veterans advocates.

Here’s a knockdown by Jason Perry who is urging Secretary Shinseki to retract his proposal, followed by Perry’s extended analysis below.

By Jason Perry

A little history is in order to explain the importance of the “reasons and bases” standard. This standard came about as part of the Veterans’ Judicial Review Act of 1988 (the VJRA). Prior to passage of VJRA, the decisions of the VA were not appealable in court. This meant that Veterans who were denied benefits by the VA were at the mercy of the BVA in seeking relief. In practice, this meant that in the nine years before the passage of the VJRA, the BVA granted relief at an annual rate of roughly 13 percent. After the VJRA, the rate of successful appeals to the BVA increased to 15.7 percent in fiscal year 1992. In the years 1995-2008, the rate varied between 17.1 and 27.7 percent. In some years, the rate of successful appeals doubled. One way that the VA was able to deny so many claims before the VJRA was that it did not have to explain the “reasons and bases” for its decisions.

Now, the VA wants to roll back the clock and resume denying claims by making their decisions more difficult to challenge. The VA must have been aware that in order to accomplish this goal it would need a reason to make this proposal palatable. It needed a straw man, something to vilify that most people could understand. The Secretary chose an issue that is only remotely related to the “reasons and bases standard.” He claimed that changing the standard would save time. “The net result of these ‘reasons or bases’ remands from the Veterans Court is that many appellants are deprived of a timely and final adjudication of their claims without any discernible benefit flowing to the appellant as a result of the delay.” Given that most delays in cases can be attributed to the VA itself, this is a bold claim. I’ll get to that in a moment. But, I have to first address the hubris in the claim that there is no discernible benefit to the remands. This claim is conclusory and without support. There are at least two discernible benefits to claimants, one implicit in the remand and the other a consequence of it. The first is, of course, the very purpose of the remand, that the BVA has to state the “reasons and bases” for its decision. Why is this important? Because if the BVA cannot articulate a reason for the choice it made then the Veteran will prevail. This is as it should be. The second benefit to the Veteran is that on remand, the BVA must consider the case again and it has the opportunity to grant the Veterans claim. This shows that the VA’s argument is without merit.

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A National Shame: The VA plays a shell game with Veterans Benefits

This Memorial Day, the Department of Veterans Affairs wants to play a shell game with Veterans. If you are not familiar with the shell game, it is a classic street hustle where a pea is placed under one of three walnut shells. The bettor or “mark” makes a wager that he can guess which shell the pea is under after the hustler shuffles them around on the table. However, the mark can never win this game because the hustler uses sleight of hand to palm the pea. The mark thinks he is playing a fair game and does not realize that he cannot win unless the hustler wants him to. A few days before Memorial Day, the Secretary of Veterans Affairs sent Congress a letter proposing changes to the law that requires the VA to explain its decisions granting or denying Veterans benefits. It also proposed to limit the instances when the VA has to pay attorney’s fees awarded to Veterans who successfully challenge the denial of their benefits. This proposal and its explanation are the set up for the shell game. In order for Veterans not to lose, we can’t let the VA play this game.

The Secretary seeks to radically change the standard regarding the VA’s obligation to explain its decisions. Under the current standard, the Board of Veterans Appeals (BVA), in its decisions, has to provide the “reasons or bases” for its findings and conclusions on all material issues of fact and law. Secretary Shinseki wants to change the standard to require only a “plausible statement of the reasons for the Board’s ultimate findings of fact and conclusions of law.” In order to support this proposal, the VA invents some non-existent problems, offers solutions to other problems that will actually worsen the situation, and misstates the law. Though its arguments are shocking enough, worse is that the VA fails to fully explain the true breadth of the proposed change. This is another hustle known as the “bait and switch.”

A little history is in order to explain the importance of the “reasons and bases” standard. This standard came about as part of the Veterans’ Judicial Review Act of 1988 (the VJRA). Prior to passage of VJRA, the decisions of the VA were not appealable in court. This meant that Veterans who were denied benefits by the VA were at the mercy of the BVA in seeking relief. In practice, this meant that in the nine years before the passage of the VJRA, the BVA granted relief at an annual rate of roughly 13 percent. After the VJRA, the rate of successful appeals to the BVA increased to 15.7 percent in fiscal year 1992. In the years 1995-2008, the rate varied between 17.1 and 27.7 percent. In some years, the rate of successful appeals doubled. One way that the VA was able to deny so many claims before the VJRA was that it did not have to explain the “reasons and bases” for its decisions.

Now, the VA wants to roll back the clock and resume denying claims by making their decisions more difficult to challenge. The VA must have been aware that in order to accomplish this goal it would need a reason to make this proposal palatable. It needed a straw man, something to vilify that most people could understand. The Secretary chose an issue that is only remotely related to the “reasons and bases standard.” He claimed that changing the standard would save time. “The net result of these ‘reasons or bases’ remands from the Veterans Court is that many appellants are deprived of a timely and final adjudication of their claims without any discernible benefit flowing to the appellant as a result of the delay.” Given that most delays in cases can be attributed to the VA itself, this is a bold claim. I’ll get to that in a moment. But, I have to first address the hubris in the claim that there is no discernible benefit to the remands. This claim is conclusory and without support. There are at least two discernible benefits to claimants, one implicit in the remand and the other a consequence of it. The first is, of course, the very purpose of the remand, that the BVA has to state the “reasons and bases” for its decision. Why is this important? Because if the BVA cannot articulate a reason for the choice it made then the Veteran will prevail. This is as it should be. The second benefit to the Veteran is that on remand, the BVA must consider the case again and it has the opportunity to grant the Veterans claim. This shows that the VA’s argument is without merit.

No one disagrees that Veterans claims take too long to process. But, there is ample evidence that this is the fault of the VA and not the result of “reasons and bases” remands. Though my law practice deals mainly with military disability benefits, I volunteered to represent a Veteran pro bono (more on this later). In that case, I entered an appearance with the US Court of Appeals for Veterans Claims in late October 2008 and, in June 2009, the court granted a joint motion for remand (meaning that the Secretary and I agreed that there were substantive issues that the BVA had to address). I would conservatively estimate that two thirds of the time in that case was consumed by waiting for the VA to gather and send to me the claims file and for the Secretary to file the designation of the record. If I had to estimate how long the case would have taken had the records been available and forwarded to me in a timely manner, I would say that it could have been completed in two weeks. When a claimant or their attorney requests the claims file, the VA attorney has to send a request to the Regional Office (RO) where the records are located. The RO then has to search for the records and send them to Washington DC, which then forwards the claims file to the requestor. The Secretary then files the Designation of the Record (DOR) (which often mirrors the claims file) and if the record is incomplete, the claimant files his Counter-Designation of the Record. After that, the claimant files a summary of issues memorandum in preparation for a court staff administered conference where the parties see if there is any settlement agreement likely. Many cases are resolved by agreement at this conference. The point is that if the Secretary really wants to address the time taken to process cases, he would institute a way to scan and store VA records and transmit them to Veterans or their attorneys.

In case anyone doubts that my experience was representative or a common occurrence, one need only look to the case of Pousson v. Shinseki, 22 Vet. App. 432 (U.S. App. Vet. Cl. 2009). In Pousson, the Secretary asked for two extensions totaling 7 months in which to file the DOR because it had not received the claims file. At the expiration of the 7 months, the Secretary notified the court that it had lost the claimant’s records. Later, 11 months after the court ordered the Secretary to file the DOR, the Secretary found the file. The court held the Secretary in civil contempt and ordered him to pay the claimant’s attorney’s fees, stating, “…the Secretary’s actions in this case constitute gross negligence and a gross lack of diligence in fulfilling the requirements of the Court’s Rules — and a wholly unprofessional and unacceptable “effort” to timely file the DOR — that have caused an extensive and unwarranted delay in the processing of Mr. Pousson’s appeal, as well as extensive briefing by numerous parties and an unnecessary expenditure of judicial resources.” Pousson v. Shinseki, 22 Vet. App. 432, 437 (U.S. App. Vet. Cl. 2009).
Some readers may feel that the above points are enough to discredit the Secretary’s proposal. However, I am incensed by the erroneous, misleading and sloppy legal arguments trotted out to support changing the standard to a “plausible basis.” The Secretary argues that, “The requirement for a plausible statement of the reasons for the Board’s findings would be consistent with the standard governing review of factual findings in the Veterans Court and other Federal courts. See Anderson v. Bessimer City, 470 U.S. 564,574 (1985) (holding that a finding is not “clearly erroneous” if the fact finder provides an “account of the evidence [that] is plausible in light of the record viewed in its entirety.”); Gilbert v. Derwinski, 1 Vet App. 49,52 (1990) (adopting the standard stated in Anderson).” The problem with this argument is that it conflates the standard for review (“clearly erroneous,” which the court uses to decide whether a BVA finding of fact is supported by enough evidence) with the standard required of the BVA to explain its decisions (“reasons and bases,” which the court needs to understand why the BVA made its findings of fact and law). The two concepts are completely different, like comparing apples and oranges and they are applicable at different stages of the claims process. The lawyer who drafted this explanation for the Secretary must have known this, both as a result of understanding these basic concepts, but also because the case cited, Gilbert v. Derwinski, sets out and explains these concepts in separate sections of the opinion. This misdirection, used to palm the pea in the shell game, makes it seem like the Secretary only wants to use a “clearly erroneous” standard of review of BVA decisions by the US Court of Appeals for Veterans Claims. This is misleading in that this is already the standard used, under 38 USCS § 7261(a)(4), and the proposed change would not impact this standard. What it would do is to allow the BVA to not explain its decision, and then require the court to defer to the BVA decision if it could imagine some “plausible basis” for its decision based on what was written.

The VA continues its search for a reason to switch to a “plausible basis” standard for BVA decisions by stating that, “Under section 7104 (d)(1), as amended, the Board’s decision would still be more than sufficient to fully explain to the appellant and any reviewing court why the Board decided a particular case the way that it did, but without the need to address all factual determinations and legal conclusions in such a highly detailed and painstaking manner that the decision becomes confusing to a lay reader.” This argument is shocking. In an effort to jettison the requirement for a legally supportable decision, the VA argues that this should be allowed in order to not confuse non-legally trained claimants. It amounts to a request to let the VA do a poor job, in return for writing simple to understand denials of benefits.

The final major problem with the VA’s explanation of the reason for its proposal to scrap “reason and bases” is that it fails to address just how radically it seeks to change the law. The Secretary’s letter focuses on the change to “plausible basis.” It fails to fully disclose the breadth of the change. Let’s compare the current law and the VA’s proposed law.
Current law:
“(d) Each decision of the Board shall include–
(1) a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record; and
(2) an order granting appropriate relief or denying relief.” 38 USCS § 7104
Proposed law:
“(a) FORM OF Decision.-subsection (d) of section 7104 is amended by inserting
“be in writing and” immediately after ‘”Each decision of the Board shall”.
(b) Rationale in Decisions.- subsection (d)(1) of section 7104 is amended to
read as follows:
“(1) a plausible statement of the reasons for the Board’s ultimate findings of fact
and conclusions of law; and”.”
This results in the law reading as follows (note, there appears to be a drafting error; the section would make more sense if it stated “….shall be in writing and include”):
(d) Each decision of the Board shall be in writing and —
(1) a plausible statement of the reasons for the Board’s ultimate findings of fact
and conclusions of law; and
(2) an order granting appropriate relief or denying relief.

This is a monumental change in the language from the current law, which reads that the Board’s decision will cover, “all material issues of fact and law presented on the record.” The revision would change this to require the Board to only explain its “ultimate findings of fact and conclusions of law.” Aside from the “plausible basis” change, this change would allow the VA to ignore or not comment on all of the issues presented. It is effectively a license for the VA to pick one issue as a reason to deny a claim and not comment on other issues presented which could support an award. The Secretary’s letter to Congress curiously omits discussion of this change and it does not explain why this would be a necessary or useful difference. I suspect that the VA could not find a reason to support this change, so it chose to focus on the “plausible basis” language in hopes that no one would notice. But I would have expected the VA to be candid with Congress.

In short, not a single one of the arguments advanced by the VA in support of this proposal makes logical sense, addresses any problem (other than the apparent inability of the VA to explain its decisions), or is supported by the cases cited. Furthermore, the VA sought to downplay the true nature of the scope of change in its proposal. Unfortunately, the VA, feeling outgunned in its efforts to deny Veterans benefits, uses similarly flawed arguments to try to deny Veterans legal representation. I will be writing a separate article on the suggestion to severely curtail attorney’s fees awards under the Equal Access to Justice Act.

I am shocked by the proposal. I am shocked by the reasons given for the “need” for the proposal. I am shocked by the effort to deny Veterans fair compensation. And I am shocked by the shell game the VA wants to play. I urge Secretary Shinseki to retract his proposal. If he doesn’t, Congress must not allow this game to be played. The only ones who would lose if the proposal passes are Veterans injured or disabled in service to our Nation. The VA should not be playing games- they should be compensating Veterans for their disabilities. If you agree with me, please make this outrage known to Congress, the public, and the media.

Attached Files

• Proposed VA legislation Sec. Shinseki.pdf (2.56 MB)