Judicial review bills seek to strengthen veterans' rights. (Legislative Update).

For most of the 20th century, veterans had no choice but to accept the VA's decisions on their claims, even if the decision was wrong. That's because the law barred review of VA decisions by the courts. But when Congress enacted legislation in 1988 to authorize judicial review of Board of Veterans' Appeals (BVA) decisions, veterans believed they would finally "have their day in court."

In practice, though, the judicial review process has been frustrating and in some cases a disappointment. The VA has been criticized for using judicial review to defeat veterans' legal rights or at least to delay justice for additional long periods of time. The process simply is not working as it was intended by Congress, and it does not serve veterans or the cause of justice very well.

Rarely does the Court of Appeals for Veterans Claims actually decide the merits of veterans' appeals. The court also has been criticized for not enforcing the rule that veterans be given the benefit of the doubt and for not ordering the VA to grant veterans the benefits they seek.

Even when the court does not uphold BVA decisions, it often finds or agrees with the VA's argument that there is some procedural error that requires the case to be sent back, or remanded, to the VA for additional development or consideration. This prolongs the process and fails to provide any incentive for the VA to correctly decide a claim in the first place. Although veterans may appeal the court's final decisions to the United States Court of Appeals for the Federal Circuit, that court's jurisdiction is so limited that veterans are prevented from seeking remedies for many common errors.

Congressman Lane Evans (D-Ill.) and several other House members have agreed with the DAV that something must be done to correct this situation. Rep. Evans, with co-sponsorship from these House members, has introduced H.R. 4018, the Veterans Judicial Review Improvement Act of 2002. The bill would require the Court of Appeals for Veterans Claims to review the entire record and would require it to enforce the benefit-of-the-doubt rule. It also would permit the court to decide a case in a veteran's favor when the VA's attorneys do not respond to the veteran's meritorious arguments in the time allowed by the court's rules.

The measure also would mandate expeditious decisions by the BVA on cases remanded by the court and mandate that VA regional or other field offices expedite decisions in cases remanded to them by the BVA.

"This is one of the most significant pieces of veterans' rights legislation to be introduced in recent years," said Washington Headquarters Executive Director David W. Gorman.

Another provision would permit the court to order payment of interim benefits during the time a case is pending on remand from the court if the VA does not decide the claim within 180 days after the remand.

The bill also would expand the jurisdiction of the Court of Appeals for the Federal Circuit to review decisions of the Court of Appeals for Veterans Claims, a crucial right long sought by the DAV.

H.R. 4018 was followed by a similar bill in the Senate. In response to recommendations by the DAV and The Independent Budget, Senate Veterans' Affairs Committee Chairman John D. Rockefeller, IV, introduced S. 2079 to improve the judicial review process for veterans. S. 2079 would also require the Court of Appeals for Veterans Claims to enforce the rule that veterans are to be given the benefit of the doubt and would expand the jurisdiction of the Federal Circuit to allow it to consider a broader range of issues. S. 2079 includes two other changes sought by the DAV and The Independent Budget. The measure would expand the jurisdiction of the Federal Circuit to allow it to consider legal challenges involving the propriety of VA changes to the disability rating schedule and would authorize the Court of Appeals for Veterans Claims to order the government to pay legal fees to non-attorney practitioners who successfully represent appellants before the court.

"Veterans who have been wrongly denied compensation for their service-connected disabilities have faced financial hardships and long delays in having their claims properly decided,"said Mr. Gorman. "It is time to put an end to this situation."

"If the laws governing veterans benefits are to be effective and serve their intended purposes, veterans must be able to enforce them in the courts in a timely manner," said Mr. Gorman. "That is why it is so important for us to take the action necessary to ensure these bills receive wide bipartisan support in Congress with passage of legislation to improve the appellate process this year. DAV members can take one step further toward real justice for veterans by urging their members of the House to cosponsor and support H.R. 4018 and their Senators to cosponsor and support S. 2079." Sample e-mail messages can be found on the Legislative Action section of the DAV Web site www.dav.org.