Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
1 Allen The Law of Veterans Benefits Pages 1 66

1 Allen The Law of Veterans Benefits Pages 1 66

Ratings: (0)|Views: 21|Likes:
Published by jesdar

More info:

Published by: jesdar on Oct 30, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

10/30/2011

pdf

text

original

 
1
The Law of Veterans’ Benets 2008-2010:Signicant Develoents, Trends,and a Glise into the Future
Michael P. Allen
1
INTRODUCTION
The two-year period addressed in this article has beena busy time for the United States Court of Appeals for VeteransClaims (“Veterans Court” or “Court”)
2
as well as in veterans’ lawgenerally. There is a new Secretary of the Department of VeteransAffairs (“Department” or VA) in a new administration.
3
Congresshas been active in the area both in passing important legislation
4
andin engaging in its oversight role.
5
The Veterans Court celebrated
1
Professor of Law, Stetson University College of Law; B.A., 1989, University of Rochester;J.D., 1992, Columbia University School of Law. This article is based on a presentationmade at the Eleventh Judicial Conference of the United States Court of Appeals for VeteransClaims (“Veterans Court” or “Court”) in March 2010. I am indebted to all the conference participants who provided comments on that presentation. I also thank Debbie Allen, LindaJellum, and Jason Stearns for their comments on this article and for their willingness todiscuss this project with me. Their comments were extraordinarily helpful.
2
It has been my pleasure to have spoken at the Court’s ninth, tenth, and eleventh judicialconferences. This article concerns the Eleventh Judicial Conference. I also wrote articles based on my presentations at the ninth and tenth judicial conferences.
See
Michael P.Allen,
The United States Court of Appeals for Veterans Claims at Twenty: A Proposal for a Legislative Commission to Consider Its Future
, 58
C
ath
. U. L. R 
ev
. 361 (2009) [hereinafter Allen,
 Legislative Commission
]; Michael P. Allen,
Signicant Developments in Veterans Law(2004-2006) and What They Reveal About the U.S. Court of Appeals for Veterans Claimsand the U.S. Court of Appeals for the Federal Circuit 
, 40
U. M
iCh
. J.L. R 
efoRM
483 (2007)[hereinafter Allen,
Signicant Developments
].
3
Retired U.S. Army General Eric K. Shinseki was sworn in as the seventh Secretaryof the Department of Veterans Affairs (“Department” or VA) on January 21, 2009, after having been nominated to that position by President Barack Obama and conrmed bythe United States Senate.
See
Dep’t of Veterans Affairs, The Honorable Eric K. Shinseki(Jan. 2009), http://www1.va.gov/opa/bios/docs/shinseki.pdf.
4
See, e.g.
,
 
Veterans’ Benets Improvement Act of 2008, Pub. L. No. 110-389, 122 Stat. 4145.
5
Activities of the respective committees of the House of Representatives and the Senatewith jurisdiction over veterans’ benets issues are detailed on their websites.
See
U.S. SenateCommittee on Veterans’ Affairs, http://veterans.senate.gov (last visited Oct. 10, 2010); HouseCommittee on Veterans’ Affairs, http://veterans.house.gov (last visited Oct. 10, 2010).
 
2
Veterans Law Review [Vol. 3: 2011]
the twentieth anniversary of its rst convening with a wonderfulceremony in October 2009. And not to be outdone, for only thethird time, the Supreme Court of the United States (SupremeCourt) decided a case originating in the Veterans Court.
6
As anyone practicing in the area of veterans’ law knows alltoo well, it is impossible to discuss everything of importance thathas occurred in the period from 2008 through 2010. One reason,of course, is that “importance” may very well be in the eye of the beholder. More signicantly, the reality is that both the VeteransCourt and the United States Court of Appeals for the FederalCircuit (Federal Circuit) have remained very busy places. In 2008,the Veterans Court received 4,128 new appeals and decided a totalof 4,446 cases.
7
In 2009, the Veterans Court received 4,725 newappeals and decided a total of 4,379 cases.
8
In scal year 2008,the Federal Circuit received 170 veterans’ law cases (plus 3 directregulatory challenges) and adjudicated a total of 107 cases by wayof merits panels.
9
In scal year 2009, the Federal Circuit received156 appeals in veterans’ law cases (plus 1 direct regulatorychallenge) and decided 95 cases by merits panels.
10
My goal here is to identify the most signicant decisionsin veterans’ law over the past two years. Recognizing theimpossibility of addressing every decision rendered by the VeteransCourt and the Federal Circuit during this period, I was able to
6
Shinseki v. Sanders, 129 S. Ct. 1696 (2009);
 see
Scarborough v. Principi, 541 U.S. 401(2004); Brown v. Gardner, 513 U.S. 115 (1994). The Supreme Court of the United States(Supreme Court) will hear a fourth veterans’ law case during the October 2010 Term.
See
Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en banc),
cert. granted 
, 130 S. Ct.3502 (2010). I discuss
 Henderson
below.
See infra
Part I.A.i.
7
U
 nited
S
tateS
C
oURt
 
of
a
ppeaLS
 
foR 
v
eteRanS
C
LaiMS
,
 
a
 nnUaL
epoRtS
,
available at 
 http://www.uscourts.cavc.gov/documents/Annual_Report_FY_2009_October_1_2008_ to_September_30_2009.pdf [hereinafter 
a
 nnUaL
epoRtS
].
8
Id 
.
9
U
 nited
S
tateS
C
oURt
 
of
a
ppeaLS
 
foR 
 
the
f
edeRaL
C
iRCUit
,
C
aSeLoad
a
 naLySiS
 fy 2008 – fy 2009
,
available at 
http://www.cafc.uscourts.gov/images/stories/the-court/statistics/CaseloadAnalysisFY09.pdf.
10
Id 
.
 
3
THE LAW OF VETERANS’ BENEFITS 2008-2010
capture what most practitioners would agree are the major matterson which these two courts have opined. In this regard, I read andreviewed every precedential decision of the Veterans Court fromFebruary 1, 2008 through April 30, 2010 and all Federal Circuitdecisions from this period (both precedential and non-precedential)in the area of veterans’ law. Finally, I reviewed decisions from theSupreme Court having applicability in the veterans’ law area.
11
Based on my review of these sources, I grouped thesignicant developments over the past two years into elevencategories: issues concerning (1) appellate timing (both withinthe Department and to the Veterans Court) as well as related jurisdictional issues; (2) what constitutes a “claim” under relevantlaw; (3) the Department’s duties of notice to claimants;
12
(4) theDepartment’s duties to assist claimants; (5) medical examinationsand evidence; (6) ratings decisions; (7) clear and unmistakableerror along with matters concerning the duty to sympatheticallyread veterans’ pleadings; (8) attorneys’ fees; (9) claimants’due process rights; (10) the general structure of the system for the award and review of veterans’ benets; and (11) certainmiscellaneous, but independently signicant, matters. In Part I below, I address each of these categories in turn.
13
After addressing the specic areas in which there have been signicant developments over the past two years, I turnin Part II to distilling the common themes from the varioussubstantive areas I addressed in Part I
14
and highlighting someareas in which I suspect there will be development over the nexttwo years.
15
11
I also reviewed non-judicial sources, including congressional enactments and proposals as well as secondary literature in the area of veterans’ law.
12
This article uses the terms “veteran” and “claimant” interchangeably unlessspecically noted.
13
See infra
Part I.A-K.
14
See infra
Part II.A.
15
See infra
Part II.B.

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->