71 Am. U. L. Rev. 1619 (2022).

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Abstract

In the past year, the United States Court of Appeals for the Federal Circuit (Federal Circuit) continued to define boundaries for the Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims (Veterans Court). These boundaries align more closely with congressional intent, especially with regard to the jurisdiction of the Veterans Court and the internal operations of the agency.

This Area Summary discusses eight major areas in which the Federal Circuit articulated important changes in veterans law. First, the Federal Circuit revisited the important and veteran-friendly “benefit of the doubt” rule in Lynch and modified it. In Lynch, the Court analyzed the term “approximate balance” and instructed VA to liberally consider evidence and apply the benefit of the doubt rule even where the evidence is not in exact equipoise. Second, the Federal Circuit limited the Veterans Court’s power to fact-find and narrowed its power to find prejudicial error in Tadlock. Third, in Anania, the Court strengthened the “mailbox” rule by finding that the claimant’s, or advocate’s, own affidavit sufficiently proved proper mailing. Fourth, the Court broadened the constructive possession rules relating to VA-contracted medical reports in Euzebio. Fifth, the Federal Circuit looked to principles of equity in Arellano and Taylor to determine whether tolling or estoppel may be invoked when the question relates to the effective date for the grant of VA benefits. Sixth, the Court clarified effective date rules in Kisor, George, Ortiz, and Buffington. Seventh, in Military Veterans Advocacy, the Federal Circuit overturned three regulations promulgated under the new Appeals Modernization Act, each related to supplemental claims—a new avenue for veterans seeking to reopen earlier decisions. Finally, in Smith, the Court continued to weigh in on attorney’s fees, an important issue for veterans and their advocates.

* Professor Drake directs the Veterans Clinic at the University of Missouri School of Law. She thanks 3L students Emily Bergmann and Joel Smith for their help in preparing portions of this Area Summary on the heels of their hard work in preparing the National Law School Veterans Clinic Consortium amicus brief in Taylor v. McDonough, discussed further below.

** Professor Duterte is an Assistant Professor of Law and the Director of the Veterans Legal Clinic at University of Illinois Chicago School of Law in Chicago, Illinois.

*** Professor Simcox directs the Veterans Law Institute and the Veterans Advocacy Clinic at Stetson University College of Law. She would like to thank Elanna Lochan and Morgan MacIsaac for their feedback and help researching portions of this Area
Summary. And, of course, her ever-patient family.