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Effects of judicial review.

Anthony J. Principi, former acting secretary of the Department of Veterans Affairs (VA), when testifying before the U.S. Senate Committee on Veterans' Affairs on May 20, 1992, described the impact of the Veterans' Judicial Review Act on the department in one word: "profound."

The Veterans' Judicial Review Act, which created the U.S. Court of Veterans' Appeals (the Court), dramatically changed VA's entire processing of claims. It gave VA appellants the right to have court review of claims denied by the Board of Veterans' Appeals (BVA).

Since October 1990 the Court has issued several landmark precedent decisions that changed VA's decision-making process. Those rulings constitute the body of decisional law that now binds VA.

The interpretation of the Court's law and procedural requirements have clarified the legal and factual analysis required during the adjudicative process. The Court remanded to BVA a significant number of cases for additional development and review. This resulted in revised procedures at BVA, which remanded to local regional offices an increased number of appellate cases. These remands primarily benefited veterans by ensuring that all procedures are followed and evidence secured.

According to Principi's testimony the new duty-to-assist guidelines require more evidence for development and review than had been VA's practice in the past. It permits appellants and their representatives to fully present all pertinent evidence and arguments for careful and thorough consideration of the claim. There are more-frequent and much more detailed communications with claimants, thereby taking claims 12% to 13% longer to complete. Rating decisions or detailed Statements of the Case take from 25% to 50% longer to prepare.
           BEFORE AND AFTER BVA
              FY '90    FY '91    FY '92
            (Before)   (After)   (After)
Total
Cases         46,556    45,308    33,483
Allowances     6,216     6,236     5,248
(%)           (13.4)    (13.8)    (15.7)
Remands       10,949    13,460    16,917
(%)           (23.5)    (29.7)    (50.5)
Denials       28,884    25,082    10,946
(%)             (62)    (55.4)    (43.7)


The chart above compares the rates of BVA allowances, remands, and denials before and after the Court began to issue its decisions. The Court has clearly had a substantial impact on VA's processing of benefit claims.

Both the allowance percentage and the remand percentage of appealed cases has increased each year since the Court began issuing decisions, while the denial percentage rate of appealed cases has declined.

BVA's average time for processing an appeal has increased substantially. For the fiscal year ending September 30, 1992, they took an average of 179 days (just under six months) to make a decision. For the month of October 1992, this increased to 221 days (more than seven months) to make a decision.

The interpretation of the law, applicable regulations, and procedures is changing almost on a daily basis with the Court's issuance of precedent decisions. The process is--and will continue to be--ongoing.

Since the passage of the Veterans' Judicial Review Act, the time for processing claims at VA has significantly increased. Better development of claims and the additional assistance and interaction with claimants resulting from Court decisions has been extremely beneficial to veterans and other appellants. This results in decisions that are fairer and more favorable. A delayed approval of benefits is a far cry better than a quick denial. As a result of a landmark decision by the Court, VA must thoroughly explain the reasons for their actions.

THE VETERAN ADVISOR

If you have a question you would like answered, send it to The Veteran Advisor, Veterans' Benefits Department, 801 Eighteenth Street, NW, Washington, DC 20006. All inquiries will be answered, but only those of general interest to our readers will be published.

QUESTION: In 1988 I suffered back and other minor injuries in an automobile accident while on active duty. Some injuries were resolved shortly after the accident, but I was plagued with chronic back pain. Two years after my discharge from service, a disc in my back slipped and caused slight paralysis. I filed a claim for compensation with the Department of Veterans Affairs (VA) for this condition. VA denied my claim, stating that the in-service back injury and subsequent slipped disc were not related.

I appealed the denial to the Board of Veterans' Appeals (BVA) in Washington, D.C., in April. BVA remanded my case to the local VA regional office so an examination could be conducted. Specifically, BVA directed the VA regional office to schedule an examination for me with a board-certified specialist to see if my back conditions are interrelated. Is the VA regional office obligated to request this examination by a specialist or can any VA physician conduct the examination?

ANSWER: BVA recognizes that examinations by medical specialists (such as neurologists, dermatologists, orthopedic surgeons, etc.) are necessary in certain instances to give claimants every benefit of the doubt. In the past few years, a BVA remand would generally contain an explanation for the necessity of a specialist examination in a specific case. Under a new agreement with VA's Compensation and Pension Service, BVA is now using precise wording in remand decisions to indicate that a specialist examination is required. If the remand decision contains the language "board-certified specialist in" or "a specialist who is board qualified," a specialist examination is required.

The local VA regional office must comply with BVA's request and will arrange for an examination with an appropriate medical specialist. If the remand decision does not contain such language, a specialist examination is not required; the choice of examiners will be determined by the VA medical center providing the examination.
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Title Annotation:Veterans Judicial Review Act
Publication:PN - Paraplegia News
Date:May 1, 1993
Words:920
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