70 Am. U. L. Rev. 1257 (2021).

* Chief Judge, U.S. Court of Appeals for Veterans Claims (CAVC). Prior to serving on the Court, Judge Bartley was an advocate for veterans and their families, starting as a student attorney at the American University Washington College of Law (WCL), from which she graduated with honors. Her advocacy included testifying before Congress on veterans’ preference laws and serving in a variety of roles, including as a law clerk for Judge Jonathan R. Steinberg of CAVC, a staff and senior staff attorney for the National Veterans Legal Services Program (NVLSP), the editor of NVLSP’s quarterly publication The Veterans Advocate, and director of outreach and education for the Veterans Consortium Pro Bono Program. In June 2011, President Barack Obama nominated Judge Bartley to serve on CAVC. Judge Bartley took her seat on June 28, 2012 and became Chief Judge of the Court on December 4, 2019. Judge Bartley would like to thank Daniel DiLuccia (J.D., American University Washington College of Law, 2010), Executive Attorney at the U.S. Court of Appeals for Veterans Claims, for his valuable assistance researching and editing these Symposium remarks.

Chief Judge Bartley delivered these remarks on October 2, 2020 at the American University Law Review’s thirty-fifth annual Federal Circuit Symposium. The remarks have been minimally edited based on the event transcript.

It’s my honor and my pleasure to be here with all of you today. I really appreciate the kind introduction. One thing I want to do first is add a bit more information about my background, because I know that there are American University Washington College of Law (WCL) students on board here today, as well as practitioners and members of the Federal Circuit Bar, and I’m going to try and hit some notes that all of you will appreciate. I’ll go into a bit of detail about the veterans benefits claims process that veterans are faced with, just in case listeners don’t know much about it, and I’ll then review two up-and-coming areas of veterans benefits law that will impact decisions by the U.S. Court of Appeals for Veterans Claims (CAVC, “Veterans Court,” or “Court”).

I got into veterans law, here at WCL, before I graduated from law school. I was part of the public interest law clinic, run at the time by Professor Susan Bennett, who now runs the WCL Community and Economic Development Law Clinic. She was a mentor in my last years of law school. I really benefited from working with her. The public interest law clinic, where I represented two veterans, was also run by Professor Nancy Polikoff, who I understand is now a Professor of Law Emerita.

I also was a research assistant for Professor Polikoff for a year. That was an amazing experience because, for those of you who might know her, she’s very rigorous, dedicated, and energetic, and she was also a mentor to me. So, I want to acknowledge that I got my start in this area of law handling veterans benefits cases at WCL through the clinic—and that, as to those two professors, I was lucky enough to be around, observe, and learn from them.

I was not lucky enough to have Professor Andy Popper, who will be moderating the question-and-answer portion of today’s event, as a professor. I was taught administrative law by Professor Thomas Sargentich, who I believe has since passed away. But at any rate, WCL really gifted me. I’m not just saying this because the Law Review asked me to be a speaker here today; WCL gifted me by exposing me to professors who were dedicated to the areas of law that they were involved in. The public interest law clinic at WCL served as a good opportunity to learn the basics of veterans law. During the clinic experience, I represented two veterans before the Board of Veterans’ Appeals (Board), which is part of VA. I also had a case, with Susan Bennett as my supervising attorney, at the Veterans Court, where I’m now the Chief Judge.

Both of those clinic cases were very enlightening. I participated in a Board hearing. I submitted briefs at the Veterans Court. I also interviewed one of the veterans in person, got to know him, and counseled him on legal matters. That was a whole new experience for me. I was, at that time, a third-year part-time law student, so those were very valuable experiences. I understand that WCL is still known for its clinics, and that reputation is well-deserved. At that time, needless to say, the clinic was an amazing opportunity for me and something I’ve always been very thankful for.

I’m hoping that some of you who are students will be interested enough in what I have to say to take administrative law, if you haven’t already, and pursue the area of veterans law. Those of you who are already attorneys and haven’t handled a veterans case, I would encourage you to do so. The Veterans Court passes federal funding through to the Veterans Consortium Pro Bono Program,1See Angela Drake & Stacey Nicks, Perspectives on the Veterans Clinic Model at Law Schools: Lessons Learned by an Instructor and a Student, 45 U. Mem. L. Rev. 943, 951 (2015) (describing the Veterans Consortium Pro Bono Program’s connection with the CAVC); What We Do, Veterans Consortium Pro Bono Program, https://www.vetsprobono.org/about/item.8161-What_We_Do [https://perma.cc/Z9RE-QCXS] (explaining how federal funding is used to help litigants). an organization for which I served as training director for many years. That program is always looking for lawyers who are interested in handling cases pro bono at the Veterans Court. So, a little plug there for them. I hope you’ll be inspired by what I have to say—or maybe if not inspired, then plain-old interested—and pursue this further on your own.

One other thing I want to mention about my WCL experience is that both of my clinic cases were successful. Because of that success, I was lucky enough to be able to clerk for the judge who handled one of my clinic cases. I applied to all of the judges at the Veterans Court during my last year of law school and basically immediately got the job—which was thrilling because, like many law students, I wasn’t sure I would be able to get a job right out of law school, and that’s always a worry for law students.

Stacey-Rae Simcox, who teaches at the Stetson University College of Law veterans clinic, called veterans law the “Wild West” in a 2019 law review article that your materials reference.2Stacey-Rae Simcox, Thirty Years of Veterans Law: Welcome to the Wild West, 67 Kan. L. Rev. 513, 513–14 (2019) (“The analogy of the Wild West is sometimes used amongst veterans law practitioners and professors . . .  to describe [veterans law’s] fresh expanse, often devoid of legal precedent, built on shifting ground, and offering a landscape where a true pioneer can both make an impact and see measurable success.”). And it is the Wild West! Even now, there are only thirty-three volumes of veterans law cases. In the early 1990s, when I first started working in the area, and when I handled a case through the WCL public interest law clinic, there were only at most three, maybe two, volumes of veterans law cases.

And so, as you can imagine, sometimes there wasn’t a lot of case law to cite to when making an argument. I think that the early practitioners had a lot of fun because they would cite directly to the previously uninterpreted regulation; there was no case law that had interpreted these statutes and regulations before. It really was very exciting. But even now, with a little over thirty years of veterans law published in West’s Veterans Appeals Reporter, and on Westlaw and Lexis, it’s exciting. There is still a lot of territory in veterans law that is unexplored, and good advocacy on both sides helps to further our jurisprudence. It’s an exciting area of law, even though it is not quite as wide open for advocacy as it once was.

I took a little detour there; I’ll now return to discussing my experience before highlighting some important areas in veterans law. After law school, I was lucky enough to clerk for Judge Jonathan Steinberg. Then, I immediately was hired as a staff attorney at the National Veterans Legal Services Program (NVLSP). After working at NVLSP for eighteen years in various capacities and also being affiliated with the Veterans Consortium, I was nominated and then appointed to the bench. I’ve been on the bench for eight-and-a-half years now, and in December I’ll close up my first year as Chief Judge.

I now want to address two very different areas that are up-and-coming in veterans law—actually, they’re already upon us—and generating a lot of very interesting cases. Before I do that, though, I’ll explain how the VA claims process is set up. When a veteran files a claim, the case will be decided by the local VA Regional Office.3U.S. Dep’t Veterans Affs., How Do I Appeal? 4 (2015). If the veteran is not happy with the decision, he or she will appeal it to the Board of Veterans’ Appeals.4Id. at 2, 7. That’s the highest administrative appellate level of VA.

If the veteran is not happy with that decision, he or she can appeal to the Veterans Court.538 U.S.C. §§ 7252, 7266. And if the veteran isn’t happy with the Veterans Court decision, or if VA is unhappy with the Veterans Court decision, either party can appeal our decision to the Federal Circuit.6Id. § 7292. So we are one of the five areas of law under the Federal Circuit’s subject matter jurisdiction.7Timothy B. Dyk, Federal Circuit Jurisdiction: Looking Back and Thinking Forward, 67 Am. U. L. Rev. 971, 971–74, 976, 981 (2018). Of course, as you may know, the Federal Circuit’s review authority is fairly limited as to veterans benefits cases. The Federal Circuit has authority over constitutional issues and doesn’t have authority to review factual findings or application of law to fact.838 U.S.C. § 7292(d)(2). But they can look at our rules of law—how we interpret statutes and regulations.9Id. § 7292(d)(1).

Because the Federal Circuit has fairly limited review power, the court dismisses many, many of our cases. The veteran often appeals without counsel and tries to get the Federal Circuit to look at factual matters or the application of law to fact. The Federal Circuit, in my view, has been very helpful in veterans law. There have been some chief judges and other judges on the Veterans Court who have spoken against Federal Circuit review of veterans benefits decisions, arguing that our decisions should be reviewable directly by the Supreme Court via a petition for writ of certiorari.10Judge Bruce E. Kasold, Remarks at the U.S. Court of Appeals for Veterans Claims Twelfth Judicial Conference, 27 Vet. App. XV, XXIII–XXIV (Apr. 18, 2013).

Specifically, the Federal Circuit has been extremely helpful, as has the Veterans Court, in defining the parameters of veterans benefits law. It’s been a very valuable thing, I think, to have the Federal Circuit review our decisions.

Some scholars have said that this setup, with the Federal Circuit reviewing Veterans Court decisions, makes things confusing,11See, e.g., Michael P. Allen, Significant Developments in Veterans Law (20042006) and What They Reveal about the U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit, 40 U. Mich. J.L. Reform 483, 524 (2007). because who’s the lawgiver? Is it the Federal Circuit? Is it the Veterans Court? In my opinion, that is a semantic or academic issue with having the Federal Circuit review our decisions. Obviously, the Veterans Court is the lawgiver for the most part, and in those few instances where the Federal Circuit reviews our decisions and comes to a different conclusion, the Federal Circuit becomes the lawgiver, so to speak. As I said, veterans in general have benefited by having the Federal Circuit review our cases. To me, that’s what’s really important.

     For example, the Veterans Court early on in the 1990s decided that equitable tolling did not apply in any circumstance to a veteran who filed a late appeal to our Court.12See Dudley v. Derwinski, 2 Vet. App. 602, 603 (1992) (en banc). The Federal Circuit in the mid-to-late 1990s set us on a different path when they said yes, equitable tolling does apply to veterans who file late appeals with the Veterans Court.13See Bailey v. West, 160 F.3d 1360, 1368 (Fed. Cir. 1998) (en banc), overruled by Henderson v. Shinseki, 589 F.3d 1201, 1203 (Fed. Cir. 2009) (en banc), rev’d sub nom. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011). That was very valuable for veterans. Does this appellate system have its downsides? Yes, it does. But I think in general the appeal structure has been helpful to veterans and to the system overall.

I want to move on to two topics in veterans benefits law that are hot at the Veterans Court right now. One is the Appeals Modernization Act14Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (2017). (AMA) that took effect in February 2019. It was basically a complete overhaul of the VA claims process before the agency.

The other hot topic is the Veterans Court’s venture into class actions, which has been underway for only a few years. The Veterans Court back in the early 1990s said that because of prudential measures it would not entertain class actions.15See Harrison v. Derwinski, 1 Vet. App. 438, 438 (1991) (en banc) (per curiam) (finding that the Court of Veterans Appeals lacked the power to adopt a rule for class actions; that “such a procedure . . . would be highly unmanageable;” and that class actions were “unnecessary” because of the Court’s ability to establish precedent). The Federal Circuit many, many years later, in a 2017 case called Monk v. Shulkin,16855 F.3d 1312 (Fed. Cir. 2017). set the Veterans Court down a different path and encouraged our foray into that area.17Id. at 1320–21. The Federal Circuit sent the case back to us to decide whether Mr. Monk’s class should be certified.18Id. at 1322. I’ll get into that case in a minute.

But first, returning to the AMA, which took effect in February 2019 as I said, it’s essentially a new procedure for handling and processing veterans claims before VA.19Veterans Appeals Improvement and Modernization Act, 131 Stat. 1105. What led to passage of this law, funnily enough, are the special procedures that were in place to help veterans, to give them due process and to assist them. As we all know, or as some of you might know, giving full process and assistance can be time-consuming.

The older system that VA was under for many years, and that was in effect for almost all of the Veterans Court’s history, required VA at every step of a fairly lengthy appeals procedure to give assistance to the veteran; to interpret the veteran’s claim broadly, instead of narrowly; to sympathetically read all of a veteran’s pleadings; and to accept new evidence throughout the appeal process. And as I said, that arguably led to some delay in the system.

Unless you had all the necessary evidence up front, or your case was very straightforward, it could easily take years to resolve a veteran’s claim. Throughout the time I practiced, it was not unusual for a claim to take, for example, six years to be resolved. Resolution of veterans claims generally involved a number of remands from the Board of Veterans’ Appeals. Again, that’s the higher appellate body within VA. Remands could also come from our Court, which is the independent Article I court above the Board, where Board decisions are appealed. The process was generally lengthy and that was, rightly or wrongly, many times attributed to the assistance, notice, and process that VA was obligated to give veterans.20See VA’s Appeals Modernization Act Takes Effect Today: New Law Streamlines Department’s Current Claims and Appeals Process for Veterans, U.S. Dep’t of Veterans Affs. (Feb. 19, 2019, 12:55 PM), https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5207 [https://perma.cc/54KF-WHJ2] (discussing the VA’s goal to complete appeals reviews between 125 and 365 days). And, of course, it was partly due to VA errors and delays.,

Another factor that made this process fairly lengthy was that a veteran could add evidence at every step of the way, really, until right before the Board made its decision. So, veterans were obtaining medical opinions and adding them throughout the claim and appeal process, and the process could take several years down below at VA, with veterans continually adding evidence during that time.

Any delay in processing claims is undesirable, but the actual processes—like giving notice, assisting veterans with getting their records, providing medical opinions and other help that was extended to veterans—is exceedingly valuable. The new AMA is intended to streamline and make things faster for veterans who have less complex cases, veterans who do not need VA assistance. Under the AMA, there are lanes that are faster and others that give a veteran a bit more process, although not quite to the same extent as the legacy system.21See id. (discussing the AMA’s new streamlined processes for appealing claims decisions). So, the idea of a veteran choosing one of several lanes for his or her claim, conducive to the amount of VA assistance he or she needs, is a linchpin of this new AMA system.

The reason I am talking about the AMA is that it promises to result in a lot of cases before our Court. We are already seeing appeals with issues related to these new provisions. Many VA-related statutes and regulations were essentially completely rewritten.

So, it is a new chapter. Challenges to these new provisions, statutes, and regulations are percolating up through the VA system, since it has been a year-and-a-half now since the new process started. These challenges are now making their way to our Court, and our judges are being faced with how to interpret the AMA. It is not an easy thing.

But one point I want to make here is that although the processes and the handling of appeals has changed, the statutes and regulations that govern entitlement to benefits have not. I was asked to speak approximately two years ago at a Veterans Day celebration at a law school in the Midwest, and the theme of that event was what impact the AMA was going to have on veterans. Well, as I just described, the AMA will probably allow many veterans to get quicker decisions, especially if the claims are very straightforward. That is a good impact.

But the AMA only affects process. It does not affect entitlement to veterans benefits per se. And it cannot fix VA’s difficulties in making accurate benefits decisions.

The decisions that VA makes on veterans appeals generally are very medically intensive. VA requires medical opinions to decide entitlement to benefits. Typical questions that VA adjudicates are: Is this veteran’s knee condition due to service? If so, how disabling is it now? What are the veteran’s symptoms and can we line them up with the rating schedule that VA has published?22See 38 C.F.R. pt. 4.

Most times, adjudicating those issues requires specialized medical opinions. Those medical opinions, and the veteran’s lay statements about what happened in service and about the severity of a disability, are the things that win or lose a claim. Did the veteran receive a thorough medical examination and opinion? If yes, then the veteran is more likely to have the information necessary to succeed with the claim. If not, then the veteran may lack sufficient information to ensure success.

So although the structure of the claims process has changed because of the AMA, the law about how to interpret medical opinions—what is an adequate medical opinion, what a medical opinion must include, and what paces the Board of Veterans’ Appeals must go through with regard to assessing medical opinions—that has not changed. And I did get a little testy, I have to say, at that Veterans Day event—because it seemed as though everyone was thinking that the AMA was going to be a cure-all.

Since the AMA, for example, doesn’t ensure that veterans receive thorough medical examinations and opinions, nor does it promise to affect the VA error rate, I do not believe it will change everything for the better. Will veterans receive quicker decisions? Yes. But VA needs to properly provide and analyze medical examinations and opinions. Whenever VA provides a veteran with a medical opinion, which it is obligated to do in very many cases, it has to do it fairly and analyze that opinion carefully.

I personally believe that VA has to do a better job deciding issues unrelated to procedure, and I think the statistics bear me out. Those issues are things that VA still has many problems with, and they are going to remain untouched by the procedure changes related to the AMA.

Let me just give you a sampling of some of the issues that we either have already seen, or anticipate seeing in the next six months to a year, related to the AMA. How is VA going to handle two claims when they are inextricably intertwined or when one issue, a secondary issue, is reasonably raised from the first claim? Under the AMA and related rules, VA put in place very strict procedures about filing a claim, which were formerly very liberal and loose and allowed claims to be reasonably raised.23See, e.g., Bailey v. Wilkie, No. 19-2661, 2021 WL 45679, at *7 (Vet. App. Jan. 6, 2021) (describing VA’s informal claims process before March 2015). It is unclear how this new format, which requires a formal application, is going to mesh with the case law on interpreting veterans’ claims very sympathetically.

Another issue is what happens when a veteran chooses a different claims processing lane for one of two claims that are closely aligned, like a veteran’s claim for an increase in his or her disability evaluation that is very closely intertwined with a request for total disability evaluation based on individual unemployability. Are both of those intertwined issues in the same lane, or could they possibly be in different lanes? We are already seeing some of these issues.

Another example is whether an appellant can submit additional argument and evidence on remand. Formerly, under the pre-AMA process, there was case law holding that a veteran could generally submit additional argument and evidence on remand, but now there may be more restrictions depending on the veteran’s appeal lane. We are already seeing cases related to that issue.

Anyway, it is a very exciting time at the Veterans Court. As I mentioned, we still face issues with how VA treats entitlement questions, as well as these new procedurally focused questions. Given all of this, the judges at the Court are very excited about our responsibilities in the area. Of course, the practitioners before the Court are excited as well.

Before we get to some questions, let me address the other issue that I mentioned as one of our hot button issues of the last few years. That is, the Veterans Court is now entertaining class actions. In 2019, the Veterans Court certified its first class action case, in Godsey v. Wilkie.2431 Vet. App. 207, 214 (2019) (per curiam). We certified a class, modified slightly from the class that counsel had requested, and granted the class relief.25Id. at 221–22, 225, 230. VA was very quick, I have to say, to implement our decision and give relief to veterans who essentially had appealed and just waited in line with VA doing nothing for 18 months or more.

Right now, we have seven class actions on the Veterans Court’s docket. I think that counsel for VA and counsel for veterans probably will continue into the future keeping the Federal Circuit very busy with appeals related to our class action authority and decision-making. In the next month or two, definitely before the end of 2020, the Veterans Court is going to issue practice and procedure rules relating to class actions in our Court, that will be somewhat similar to Rule 23 of the Federal Rules of Civil Procedure.26The Court subsequently issued its class action rules in November 2020. See Vet. App. R. 22 (filing a request for class certification and class action); Vet. App. R. 23 (action on a request for class certification and class action). For the class actions that we’ve entertained so far, we’ve used Rule 23 as guidance. We have worked long and hard for about two years now to come up with rules relating to class actions.

Because we are certifying and hearing these class actions in an appellate context, not in a trial court context, our processes are different from the way things generally work for class actions. We, working with our Rules Advisory Committee, had to adapt some of the usual processes. At any rate, as I said, appeals of our class action decisions are probably going to keep the Federal Circuit very busy. The judges of our Court have had various disagreements, such as whether we can hear a class action only in the context of a petition for extraordinary relief, or whether we can hear a class action in an appeal context—that’s one example—and if we can hear them in an appeal context, what classes of veterans could be included.

In Skaar v. Wilkie,2732 Vet. App. 156 (2019) (en banc). the veteran was trying to form a class that included veterans who didn’t have appealable Board decisions.28Id. at 179–80. And we are facing a lot of other class certification issues that may travel up to the Federal Circuit. I just wanted to mention a few more things about that. In Godsey, we certified a class and granted relief.29Godsey, 31 Vet. App. at 225. We also certified a class and granted relief in Wolfe v. Wilkie,3032 Vet. App. 1 (2019). a class action that arose from Staab v. Shulkin,31Wolfe, 32 Vet. App. 1 (2019); Staab v. McDonald, 28 Vet. App. 50 (2016), appeal dismissed sub nom. Staab v. Shulkin, No. 16-2671, 2017 WL 4317175, at *1 (Fed. Cir. July 17, 2017). a case you might have heard of because it has received a lot of press and affects many, many veterans.32See, e.g., Courtney Kube et al., Court Rules VA Must Pay for Veterans’ Emergency Room Care, a Decision that May Be Worth Billions, NBC News (Sept. 10, 2019, 7:00 PM), https://www.nbcnews.com/news/veterans/court-rules-va-must-pay-veterans-emergency-room-care-decision-n1052131.

Staab is about reimbursement of non-VA medical expenses and whether VA interpreted a statute correctly.33Staab, 28 Vet. App. at 51. A secondary issue later arose in Wolfe v. Wilkie, as to whether VA tried to get around the Staab decision.34Wolfe, 32 Vet. App. 11–12. So that’s been and continues to be the focus of some press, and the parties have come up with a plan for relief that I believe they are trying to implement.

The class action field in our appellate court really does leave advocates free to, if they can, try to put together a certifiable class and then get widespread relief for a whole group of veterans simultaneously. This is something that, until the Federal Circuit’s Monk v. Shulkin decision in 2017, was not possible.35Monk v. Shulkin, 855 F.3d 1312, 1320–21 (Fed. Cir. 2017). And so that possibility for class relief provides a potential great benefit to veterans and will be very helpful to them, used appropriately in accordance with our upcoming rules.36See supra note 26. In conclusion, I hope this talk gives you a taste of the issues that we are encountering now and that we are going to continue to encounter.

I am going to close now and see if people have questions. Again, I would encourage you to get to know veterans law. There is a lot happening in our area, and it is like the Wild West still, even though the Court is thirty years old. There is much uncovered ground and many exciting developments. Thank you for inviting me to speak to students, practitioners, and academics about this vibrant area of law that falls under Federal Circuit review.

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