By James D. Ridgway | 62 Am. U. L. Rev. 1037 (2013)
New beginnings can be as much about the past as they are about the future. Last year’s article on veterans law in the Federal Circuit
noted the extraordinary amount of change occurring in the composition of the court. Instead of speculating about the future, it focused on analyzing the past. A year later, it appears that the future does indeed begin with the past. With a substantially different lineup of judges, practitioners have entered the latest era of the Federal Circuit by revisiting the fundamental role of the courts in veterans law. In 2012, the Federal Circuit addressed numerous cases involving the limits on its authority and that of the Court of Appeals for Veterans Claims (CAVC). Veterans’ representatives have encouraged the Federal Circuit to take a more active role in reviewing individual decisions of the CAVC. They have also argued that the Federal Circuit should prod the CAVC toward reversing the Board of Veterans’ Appeals (BVA) more frequently. In 2012, there was a broad effort by veterans’ representatives to revisit the limits of judicial review. This Article will preface its review of the Federal Circuit’s decisions by considering how efforts to limit attorney representation in the Veterans Judicial Review Act (VJRA) have resulted in the current procedure-heavy focus of judicial review. It will also discuss how these limits might be adjusted to address the system’s current problems of complexity and delay.
Part I of this Article will look at the central dynamic that currently drives judicial review of veterans’ benefits and examine how review might be readjusted to better serve veterans. In essence, because attorneys normally become involved only after the agency proceedings are completed and the record is closed, veterans law in the courts overwhelmingly revolves around asserting a procedural error to justify a remand to the Department of Veterans Affairs (VA). The record on appeal is rarely sufficient for reversal, and remand to VA is the only way to submit new evidence. This concentration on procedure over factual development of cases has led to more complex cases, a phenomenon that has contributed to skyrocketing delays in adjudicating claims. Part II of this Article looks at the Federal Circuit’s veterans law decisions in 2012. It pays particular attention to the numerous cases in which veterans law practitioners have pushed against the current limits on judicial review. This Article concludes by offering some thoughts on reform of judicial review in veterans law and on the role of attorneys in shaping issues for consideration by the court. Finally, this Article includes an Addendum, which continues the annual statistical look at veterans law at the Federal Circuit.