For veterans applying for disability benefits, the cycle is sometimes endless: veterans can appeal decisions on their claims to the Board of Veterans Appeals, and then again appeal to an independent federal judicial panel, the Court of Appeals for Veterans Claims. And then, often imps, the claim is sent back down the board for more review and processing. According to a 2011 annual report, the average time between filing an appeal and disposition by the board is nearly two and a half years, not including the amount of time the court takes to make a decision. And, if there is a remand, that adds more months or years to the process. Some cases are remanded multiple times, earning this process the nickname “the hamster wheel”.
However, this could all change. Lawyers for an 80-year-old widow of a veteran are asking the United States Supreme Court to empower the Court of Appeals for Veterans Claims to issue fewer remands and simply issue final decisions on its own. The lawyers hope that if they succeed, many more cases will be decided much faster.
Ms. Byron’s husband, Dennis Donald Acheson, died at the age of 42 in 1971 due to repeated exposure to nuclear radiation during classified testing operations for the military. Shortly after his death, Ms. Byron requested benefits and submitted evidence from doctors saying that her husband’s cancer was directly a result of the radiation he was exposed to in the Army.
After repeated rejections and appeals, the Board of Veterans Appeals in 2009 granted part of her claim and set an effective date of 1988 – entitling her to a retroactive payment for benefits starting from that date. But Ms. Byron asserts that the effective date should be 1971, when her husband died. The Court of Appeals for Veterans Claims agreed that the board had probably erred on the effective date. But rather than ending the case there, the court remanded it to the board.
In its decision, the court wrote that it would not address whether an earlier effective date was warranted, “because that would require it to make factual determinations in the first instance based on the evidence the Board failed to consider, which it may not do.”
Ms. Byron appealed that ruling to the United States Court of Appeals for the Federal Circuit, but lost. Now, she is asking for relief from the Supreme Court.
Edward Reines, a California-based lawyer who is handling Ms. Byron’s case, said the Court of Appeals for Veterans Claims was wrong to say it was powerless to consider the facts of the case. He argued that the case record has all the evidence the court needs to rule in Ms. Byron’s favor and bring the four-decade-long case to an end.
“We deserve reversal, not remand, because the record is complete,” Mr. Reines said. “To say the Court of Appeals for Veterans Claims cannot even consider whether there is a bona fide issue is wacky and so harmful to a system that is already backlogged.”
A number of veterans organizations, including Paralyzed Veterans of America, Gold Star Wives of America and the National Veterans Legal Services Program have filed a brief supporting Ms. Byron’s case.
In their briefs, Justice Department lawyers representing the Department of Veterans Affairs argue that the Court of Appeals for Veterans Claims, like most federal appeals courts, does not have the authority to review the record and make decisions on the facts of a case. But Professor Fox of Penn State, who has also written a brief supporting Ms. Byron, asserts that Congress, when it created the court in 1988, wanted it to be an independent body with the expertise not only to uphold or overrule the Board of Veterans Appeals but also to make judgments on the merits of a case.
The Supreme Court is likely to decide early next year whether it will hear the case.
Source: New York Times