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July/August 2018

VVA and the War to Win Judicial Review

The right of veterans to challenge Veterans Administration benefits decisions in court, a right denied since shortly after the Civil War, was a focus of Vietnam Veterans of America from its earliest days.

In 1986 we were working on getting a federal charter. While the charter would be granted through the Senate Judiciary Committee, it would not happen without first getting approval of House Veterans’ Affairs Committee Chairman G.V. Sonny Montgomery (D-Miss.). Once we had filed all the necessary paperwork, fulfilled the requirements, and gained support of most of the members of the Judiciary Committee, we had to seek Chairman Montgomery’s approval, so we set up a meeting. 

I was the VVA National Secretary at that time and accompanied VVA President Bobby Muller and VVA Legal Services Director David Addlestone to the meeting in Montgomery’s office. As we sat on a sofa, Montgomery took his place in an oversized leather chair facing us.

Illustration: Vivian Rathfon“I’ve just talked to Senate Judiciary Chairman Charles Grassley and told him to go forward with your charter,” he said. We were duly appreciative, thanking him for his intervention and support.

Then Bobby Muller dropped the bomb: “We are going for judicial review,” he said. Montgomery’s smile faded, and he said, in what can only be described as a little boy’s voice, “You’re going to split my committee.” We knew that there was support for such a measure in the House Committee, and we knew that from working with the Vietnam veterans on the committee and other allies in both the House and Senate. Now began the work of convincing other committee members of the need for judicial review.


Historically, veterans had been denied the right to appeal adverse benefits decisions since a law was passed denying that right following the Civil War. Today, anyone with a claim to benefits from myriad federal programs may appeal adverse decisions made by other federal agencies in a court of law. Legislation to give veterans this right had been introduced and passed in the Senate many times since the 1970s, only to languish in the House Veterans’ Affairs Committee.

In January 1987 Rep. Lane Evans (D-Ill.), a Vietnam War veteran and member of the House Veterans’ Affairs Committee, introduced judicial review legislation. In a letter to House colleagues he wrote: “We believe that veterans should be allowed their day in court. Social Security recipients, federal prisoners, even undocumented workers can challenge agency decisions. But veterans are stuck with the VA rulings and have no chance of outside review. This violates our constitutional system and its checks and balances. It leads to agency abuses and to a bureaucracy that’s run amok.”

Rep. Montgomery and the committee’s senior Republican at the time, Rep. Gerald Solomon (R-N.Y.), responded to the Evans letter with one of their own, claiming “the most compelling argument against judicial review is that the VA would become the veteran’s adversary.” They also argued it would overburden the federal judicial system.

Rep. Montgomery then held a meeting with representatives from most of the veterans service organizations. VVA was not invited. During that meeting Montgomery applied pressure on those organizations to oppose judicial review, as we found out from newly hired VVA Legislative Director Paul S. Egan, who came to VVA having spent eight years working for the American Legion as Deputy Legislative Director. He had attended Montgomery’s meeting in that capacity. The other organizations were told at that meeting that “It’s going to be difficult to pass any of the legislation you [the other VSOs] favor if you don’t strongly oppose judicial review.”

The opposition of the other VSOs carried great weight. They claimed that the Board of Veterans Appeals (BVA), the VA’s highest level of benefits adjudication, worked well. The unanimous opposition from these other groups made it difficult to convince fence-sitting members of Congress on and off the House Veterans Affairs’ Committee of the need for judicial review.

Most VSOs, including VVA, have trained service officers or service representatives who help veterans prepare and file claims with the VA for service-connected disability compensation. The VSOs—but not necessarily the service representatives—feared that the establishment of court review would supplant their programs because veterans would want lawyers to handle their cases. Under the circumstances, our arguments for the constitutional right to judicial review for veterans was not enough. We had to prove the system was broken.

Illustration: Vivian Rathfon

Proof of a Broken and Corrupt VA

Fortuitously, VVA Legal Services had hired a lawyer who had worked at the BVA as a staff attorney. In what began as a casual conversation about the workings of the BVA, we learned of patterns of suspicious behavior that were highly troubling. We learned that the BVA had a 13 percent claims approval rate that never changed from year to year. VVA suspected a quota. In addition, we learned from our newly hired BVA lawyer that there were practices and extra-regulatory rules employed by the BVA to deny claims. One practice was to consistently deny claims by Filipino veterans simply because of their ethnicity.

Then there was the “blades” practice at the BVA. Blades were claim files that were thin, containing less paperwork. Senior members on the Board insisted they be given these while newer members got the much larger files that came in boxes. Significantly, the Board gave performance awards based on the number of claims handled each year. The less that had to be reviewed, the more claims moved off their desks, allowing for larger awards.

The most important hearing concerning judicial review did not take place in the Veterans’ Affairs Committee but rather in the House Government Operations Subcommittee on Human Resources and Intergovernmental Relations on Feb. 18, 1988. In his opening remarks, Chair Ted Weiss (D-N.Y.) explained the reason for the hearing: “Internal VA reports indicate that the VA has covered up serious deficiencies in disability claims processing by under-counting the number of errors found by quality control.” Weiss noted that questions about the VA’s ability to protect veterans could jeopardize pending legislation to elevate the VA from an independent agency to full cabinet status and said the issue of judicial review would have a pertinent impact on that legislation.

VVA ally and tireless advocate Lane Evans was the first witness at the hearing. “The pending legislation that seeks to elevate the Veterans Administration to cabinet-level position is an important and needed step,” he testified. “But I believe raising the stature of the VA will not alone solve the plight of thousands of disabled veterans who are being unfairly denied benefits by the agency. For many veterans, the VA Appeal and Review process has become the enemy without any means to battle back.”

Illustration: Vivian RathfonVVA Vice President Richard O’Dell and Legislative Director Egan testified for VVA and discussed the sketchy BVA practices we had discovered. But some of the most important testimony came from Daniel J.B. Bierman, who had retired from BVA at the end of 1987, and Ernest Wright, an attorney with BVA who had been demoted. They criticized BVA practices as “arbitrary” and “slipshod.” Bierman stated: “The evilness of this system is that it promotes shoddy treatment of the cases by encouraging incomplete review.” He also said that the high production bonuses had been awarded to those who spent a total of just over seven minutes per case.

VVA also gave the committee access to documents from current BVA members regarding practices alleging they rewarded carelessness and penalized diligence. “Instead of providing a fair and impartial system of handling the number of appeals, the chairman is engaging in acts, practices, policies, and courses of conduct to pressure board members and sections into increasing the number of cases being processed each year without regard to the amount of time that must be devoted to each individual case in order to give it adequate legal and evidentiary consideration and in order to render a careful, correct, fair and impartial written decision consistent with the members’ obligation to treat each claimant in accordance with the requirements of due process.” Egan said. “In our view, the VA’s apparatus for adjudicating claims from the Regional Office level up through the final appeal adjudicated by the BVA is so institutionally flawed, so weighted against the veteran, that no amount of jury-rigging can assure fairness in the absence of judicial review.”

The unmasking of the problems in veterans claims processing and the linkage between court review of VA decisions and the elevation of VA to a cabinet-level department was a strategy we at VVA were ready to use. We supported the elevation of VA, but not for the reason often stated by other VSOs—that veterans deserved to be represented in the President’s cabinet. We believed that such an elevation would bring greater scrutiny to VA and its practices by all federal departments and agencies and, most importantly, by the news media. As VVA President, I often said, “We don’t think the VA should be above the law—our position on this is firm.”

VA could not deny the claims made at the hearing, but ultimately the strategy of linkage was unsuccessful. Nevertheless, VVA continued the fight.

A New Strategy

To mount a comprehensive offensive in pursuit of judicial review for long-abused and ignored veterans, it was necessary to use a strategy embracing the media, motivating VVA members at the grassroots, and working the issue hard in the halls of Congress. As we worked with members of Congress to seek other means to secure judicial review, we also started a public relations strategy. Beginning in the summer of 1988, with the help of VVA state councils and chapters, we began contacting the editorial boards of leading newspapers, particularly in the districts of members of the House Veterans’ Affairs Committee.

VVA Vice President O’Dell and I made many visits. It was discouraging to find an almost universal indifference of editors to veterans’ issues. They often acted as if they were doing us a favor just to meet with us. But once we started explaining that veterans were the only people in the U.S. who did not have the right to appeal adverse federal agency decisions in a court of law, they suddenly, in every case, became very interested in what we had to say. We received supportive editorials in many of these newspapers across the country.

One that was particularly significant for me was an editorial in the Columbus Dispatch, my hometown newspaper, the day after my meeting with the editor. That piece was also significant because VVA was targeting Rep. Chalmers Wylie, an opponent of judicial review and a member of the House Veterans’ Affairs Committee.

On the same day as the meeting with the Dispatch, we also held a meeting with local veterans service officers from the other VSOs and county service representatives. We invited staff from elected officials’ district offices to join us. When a member of Rep. Wylie’s staff came in, I told him I was pleased he had come because this meeting was really for him to hear what we and the service officers had to say. I asked the service officers to stand up if they had ever had a claim they had worked on and knew was solid but had been denied or remanded back to the VA Regional Office. Not one service officer remained sitting. They voiced frustrations with the VA system and some even wondered why their VSOs opposed judicial review.

Illustration: Vivian Rathfon

Throughout all of 1987 and 1988 there were many hearings in both the Senate and House of Representatives and attempts to get judicial review enacted. Efforts were made to sidestep the House Veterans’ Affairs Committee by having the bill added as an amendment to another bill being considered by the full House. So much pressure was brought to bear that Chairman Montgomery offered a compromise that would have done away with the BVA and replace it with a court. All this would have done was rename the BVA and retain it within the VA. This offer was rejected for the insult that it was. The court had to be outside VA.

Paul Egan was VVA’s pointman in working the halls of Congress. He met with countless members and their staffs. He worked tirelessly, taking full advantage of the help generously offered by VVA’s staunchest ally, Rep. Lane Evans.

Victory at Last

On November 18, 1988, President Reagan signed into law the Veterans Judicial Review Act that established the United States Court of Veterans Appeals. The court has seven judges who serve for fifteen years. Interestingly, two of the first seven judges named to the court were sitting VA General Counsel and ardent opponent of judicial review Don Ivers and Jonathan Steinberg, long-time Chief Minority Counsel to the Senate Veterans Affairs’ Committee and an unwavering supporter of judicial review.

The court was not fully implemented until 1989 when the administration of George H.W. Bush took office. As we had hoped, the Court made important decisions that changed the ways BVA handled veterans’ claims. The Court demanded something BVA did not: an explanation for its reasoning for denying or remanding claims.

The Court issued a decision that changed the make-up of BVA panels. Each panel had been made up of two attorneys and a physician. The Court found that in some cases the panels denied claims based on physicians disputing medical information contained in the claims files. VA regulations stated that decisions were to be based on the claim file evidence and that Board physicians were, in fact, adding evidence—they could not give evidence and be judges, too. Eventually, BVA removed the physicians from the panels.

Another decision affected the whole VA adjudication system when the Court demanded that the VA follow regulations regarding its duty to help veterans with their claims. In many cases this involved helping veterans get physical examinations to substantiate their claims. In the years since the Court’s establishment, the claims approval rate at BVA has risen from 13 percent to a high of more than 30 percent.

At Chairman Montgomery’s retirement party in 2006, Mack Fleming, the Chief Counsel of the House Veterans’ Affairs Committee and an unshakable opponent of judicial review, told me that VVA succeeded because its members knew the issues thoroughly and could make clear our position to their members of Congress. He added that, unlike other VSOs, whose members seemed to read from scripts, VVA members were knowledgeable, articulate, and passionate when dealing with their congressional representatives.

Illustration: Vivian Rathfon

A Right to Be Proud

As with most legislation, there were compromises along the way, but in the end justice for veterans became a reality. It is an accomplishment that would not have happened without VVA leadership and commitment at all levels of our organization. It is an accomplishment that will outlast our organization and affect veterans’ rights for generations to come.

I want to thank Bart Stichman of National Veterans Legal Services Project and formerly of VVA Legal Services and Paul Egan for their assistance, insights, and encouragement in preparing this article and all VVA staff and members who made this important legislation a reality back in 1988.





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