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VA’s commitment to timely processing of claims and appeals is merely lip service

There is a saying amongst veterans waiting for their disability claims and appeals to be processed that VA’s motto is “delay, deny, wait ‘til I die.” Recently, this sentiment was on full display during an oral argument before the U.S. Court of Appeals for Veterans Claims (CAVC) in Monk v. Wilkie.

The Monk case centers around two important issues for veterans: the CAVC’s ability to decide class action lawsuits, and whether the U.S. Department of Veterans Affairs (VA)’s delay in adjudicating claims constituted a violation of the right to due process under the Fifth Amendment to the U.S. Constitution.

The latter argument is, unfortunately, a familiar one to veterans who have experience filing a disability compensation claim or an appeal of that claim at VA. Although the substance of the argument is a frequent refrain from veterans, what was unusual about this argument was VA’s brazen response when pressed about the delays.

Specifically, in an exchange with Judge Michael P. Allen, attorneys from the VA Office of General Counsel stated that a delay of 100 years to decide a disability claim was not per se unreasonable. The exchange went as follows:

Judge Allen: “Is there any period of time in which you would be able to tell me, simply knowing the number of years, that it’s not just likely but it is unreasonable? A hundred years?”

OGC Attorney: “No your honor, because the duty to assist could require the VA under this court’s case law if it was an increased rating claim and the day before the veteran said my disability has worsened that requires VA to provide him a new exam.”

Judge Allen: “So… think about this. You’re representing the Secretary of Veterans Affairs of the United States. OK?  Yet you just told me … that if VA waited 100 years to decide a claim that might be reasonable. I really want you to be very careful if that’s going to be your position.”

OGC Attorney: “It would be extremely unlikely that that would ever happen…”

Judge Allen: “I did not ask you that. In my hypothetical it has happened. It is a hundred years. Can the Secretary of Veterans Affairs take the position in public now that a hundred year delay is unreasonable. I cannot believe you are fighting on this question.”

OGC Attorney: “No your honor we stand by our answer.”

Veterans and their advocates shouldn’t just be shocked by VA’s answer, they should be outraged.

Although VA has publicly stated that it has gone to great lengths to reduce wait times for both claims and appeals in recent years, VA’s position during oral argument in the Monk case evidences a contrary intent; that VA’s commitment to timely processing of claims and appeals is merely lip service.

The problems with VA’s stance in Monk are numerous.

First, there is a long-standing policy that processing delays harm veterans. As held in Hayburn’s Case, a 1792 decision by the U.S. Supreme Court about the harm caused by delays in adjudicating veterans’ benefits claims, “many unfortunate and meritorious individuals whom Congress have justly thought proper objects of immediate relief may suffer great distress even by a short delay, and may be utterly ruined by a long one.”

Second, the CAVC’s more recent case law is also contrary to VA’s position.  In one of its first precedential decisions, the CAVC held in Erspamer v. Derwinski, “a continuation of a ten year delay in resolving petitioner’s claim and the inadvertent or intentional failure to comply with the remand orders of the [Board of Veterans’ Appeals] could well serve to frustrate the potential or prospective appellate jurisdiction of this court.”

Third, and most compellingly, there is also the common-sense argument. Although legal decisions often turn on technicalities, the need for 100 years to process a veteran’s claim — given that the average life expectancy in the U.S. is only 78 years — and indeed about a year less for the average veteran — is absurd.

According to Stacey-Rae Simcox, Director of the Veterans Law Institute and Veterans Advocacy Clinic at Stetson University College of Law:

“The VA’s job is to take care of our veterans and when testifying before Congress and talking to the press the VA insists they are working hard to make decisions on veterans’ claims quickly.  However, the VA’s insistence to the Court that is tasked with reviewing the VA’s actions that 25, 50, even 100 year delays might be reasonable in adjudicating a veteran’s claims is an indication that not of all the VA is taking the pledge to take care of veterans seriously.  The public should be concerned about this issue.”

William E. Gladstone, the former Prime Minister of Great Britain, once famously said that “justice delayed is justice denied.” Per its argument in the Monk case, VA confirmed that it has no qualms about delaying, and therefore denying, justice to veterans.

This is simply unacceptable, and our lawmakers and stakeholders must come together to hold VA accountable.

Rory E. Riley-Topping served as a litigation staff attorney for the National Veterans Legal Services Program (NVLSP), where she represented veterans and their survivors before the U.S. Court of Appeals for Veterans Claims. She also served as the staff director and counsel for the House Committee on Veterans’ Affairs, Subcommittee on Disability Assistance and Memorial Affairs for former Chairman Jeff Miller (R-Fla.). You can find her on Twitter: @RileyTopping.

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