STATE OF COURT

CHIEF JUDGE FRANK Q. NEBEKER

STATE OF THE COURT

FOR PRESENTATION TO THE

UNITED STATES COURT OF VETERANS APPEALS

THIRD JUDICIAL CONFERENCE

OCTOBER 17-18, 1994

{as it appears in West’s Veterans Appeals Reporter}

I will speak to you today about my view of the state of the Court and the scope and chain of authority within the veterans' benefits system. Let us remember that Board mistakes and inconsistent results were deemed to warrant review and oversight on a case-by-case basis where the results were adverse to the claimant. Hence, the Court was created and began its operation five years ago today. Before the advent of judicial review, that system, as now, functioned in a two-tiered operation-agencies of original jurisdiction and the Board of Veterans' Appeals. Whether the former were within the direct chain of authority under the Board, or acted as a separate surrogate of the Secretary seemed of no concern for many years.

Now, I respectfully suggest, it is highly important. The problem is not with current statutory scheme, at least in theory, but -- as relates to statutory scheme and its actual implementation within the Department, I'm reminded of the line of Will Rogers: All I know is just what I read in the papers. An article last week in the Washington Post reported Congressional enactment of a bill which would enable Gulf War veterans to receive compensation for ailments that doctors have been unable to diagnose. The article noted that the Senate Veterans Affairs Committee had initially thought such legislation was unnecessary because, in the Committee's view, the Secretary already had more than sufficient statutory authority to provide such compensation. However, the article observed, the Senate acquiesced when it became clear that the Secretary of Veterans Affairs would not act without specific legislation. In the words of Senator Rockefeller, the Senate Veterans Affairs committee was forced to act on legislation to assure the benefits would become a reality.

Five years {now nine} of the Court's operation has demonstrated that there is a vast gap between the theory and the practice of judicial review and it is that gap which appears to be frustrating the original intent behind enactment of the VJRA and the implementation of the goals of meaningful judicial review. Although Senator Rockefeller was speaking of a different subject last week, his words may also apply to judicial review and Congress may well be forced to act on legislation to assure the benefits [of judicial review] would become reality.

To apply the point to the goals of judicial review, keep this in mind. In addition to being responsible for the overall control, direction, and management of the Department (38 U.S.C. s503), the Secretary is responsible for deciding all questions under a law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C s 522(a) (of the secretary, by the Secretary, for the Secretary ... Sounds vaguely Lincolnesque, doesn't it?) Although the Secretary may (38 U.S.C. s 512) and has (38 C.F.R. s 2.6(b)(1) delegated authority for those decisions to the Under Secretary for Benefits, the Secretary remains ultimately responsible and the Under Secretary is responsible to the Secretary for them (38 U.S.C. s 306(b).) In summary, therefore, the Secretary is one who is on the hook legally, if not factually.

Similarly, the responsibility and authority for deciding internal appeals is also a matter of statute. All questions in a matter which under section [511(a)] of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. 38 U.S.C. s 7104(a). Under present law -- and the tried but true caveat that you can delegate your authority but never your responsibility -- the Agency of Original Jurisdiction operations and decisions as well as for BVA decisions. He may, and has, delegated the authority to carry out these functions to the VBA -- Veterans Benefits Administration -- and the BVA -- Board of Veterans' Appeals -- respectively, but the responsibility continues to rest with him. He is, in law at least, ubiquitous; he is the trial, the Department's appellate court, and the advocate before the Court of Veterans Appeals. He also just happens to be the downside party to each of the appeals to this Court.

Since the court has the express power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate (38 U.S.C. s 7252(a)) as well as such assistance in the carrying out of the [the Court's] lawful writ, process, order, rule, decree, or command as is available to a court of the United States (38 U.S.C. s7265(b)), it is indeed at least arguable (if not conclusive), at least in theory, that no additional legislation is required.

The past five years of the Court's operation, I believe, afford sufficient time and and experience to give credibility to what I am about to say and recommend.

I ask you to join me in an exercise of our collective imagination. We will deal with a hypothetical situation. It's a political hypothetical.

Imagine, if you will, the creation of a government of a new state in our union, or one in the world of emerging nations. In that state, there is an Executive and a Supreme court and a Court of Appeals. At the local level, however, there are adjudicative bodies which initially resolve disputes. But, the Constitution leaves the Supreme Court and the Court of Appeals with direct authority over the local adjudicators. It is only when the Executive can be persuaded to issue the proper order that these local adjudicators must obey. Thus, the locals determine, quite independently of the courts, when, and how they will decide matters before them. I dare say, you know of no viable republican form of government with such a system, and it is not hard to see that it would not work well.

I believe my message is clear. There is, I suggest, no system with judicial review which has within it a component part free to function in its own way, in its own time and with one message to those it disappoints -- take an appeal. That is, I am afraid, what we have today in many of the Department's Agencies of Original Jurisdiction -- that is AOJs -- around the country. Neither the Court, through the Board, the Board, nor the General Counsel has direct and meaningful control over the Agencies of Original Jurisdiction. Indeed, it is also clear that the VHA -- the Veterans Health Administration -- ignores specific directives to proviide medical opinions as directed. And this is resulting in unconscionable delays. Let us examine judicial review. Remember, the Court and the Board do not make policy, the Secretary and Congress do. The Court simply identifies error made below by a failure to adhere, in individual cases, to the Constitution, statutes, and regulations which themselves reflect policy -- policy freely ignored by many initial adjudicators whose attitude is, "I haven't been told by my boss to change. If you don't like it -- appeal it."

There is no question that a recommendation to place the Department's AOJs directly within the chain of authority, if adopted, will disrupt the status quo in those agencies. I agree that, aside from the organizational change, training and a wholly different philosophy and method of operation will be necessary. Such change has been necessary for five years and now, many, including myself, see that the 1988 goal of judicial review is not complete. Too many of the Court's precedent opinions must focus on law clearly stated in statutes or regulations but ignored below. Indeed, the rate of adjudication error is far too high for a healthy system. Most importantly, though, those opinions should serve to guide future adjudications of similar cases. Why permit the initial adjudicators to ignore those decisions simply because their operational head ignores them and doesn't issue directives and provide training to follow them?

In the last five years, the Court has in various cases remanded matters to the Board with directions of one sort or another to bring about action at the Regional Office. Sometimes the Board, in its discretion, remands to the RO. There appears, however, to be no direct authority in the Board over the RO. Many ROs appear to do what they think they must when they get around to it. In fact, recent examples show that attorneys on the General Counsel's staff, too, have little leverage to require cooperation when they attempt to obtain information concerning cases, so they can meet their obligations as the Secretary's attorneys to report the status of a particular case to the Court. The attitude in at least some of the ROs seems to be "I don't care what the Court says the law is; I care only what my boss says it is."

Since the Secretary is before the Court in every appeal it is possible for the Court, in the event it or the Board remands for RO action, to direct the Secretary, independent of the Board, to perform timely and complete RO action. Indeed, the Court has done that recently. But such a case-by-case approach does not solve the systemic problem created by a lack of a contiguous chain of command.

To be sure, there are arguments to maintain the status quo, but I respectively submit:

(1) after five years of judicial review, they are not persuasive; they are quite defective and outmoded; and

(2) they are nothing but an effort to preserve administrative turf in a changed time. They are reflective of an institutional attitude which places the job -- the -- position -- first in the very government department which is, by its own history and policy, dedicated instead to

"putting veterans first."

Mr. Secretary, I urge and recommend that you use your authority to place the Department's Agencies of Original Jurisdiction within the chain of authority established by law in order fully to effectuate the purpose of judicial review of decisions which are adverse to the claimants. Make them responsible for prompt compliance with remand directions issued by the BVA, addressed in 38 C.F.R. s 19.38.

Section 511 of Title 38 excepts proceedings before the Court from the statute's general preclusion of judicial review of actions by the Secretary. It is possible that amendment of section 511 to require that the Secretary comply with the Court's decisions in all adjudications and appeals would emphasize this duty. While statutory authority already

exists, perhaps, as in the case of benefits for the veterans of the Gulf War, Congress may have to act. Given the unique nature of our situation and the Secretary's ubiquitous position, the Court could give serious consideration to directing all future remands to the Secretary (as opposed to the Board) for proceedings consistent with the opinion and fulfillment of his statutory responsibilities. Then, of course, the Court could compel action of the Secretary unlawfully withheld or unreasonably delayed under 38 U.S.C s7261(a)(2).

Mr. Secretary, as an individual, you have devoted decades of your life to putting veterans first. Several years ago, then-Acting General Counsel Bob Coy likened the Department to an ocean liner being required to change course on the high seas. One thing is certain: the orders to change course, to follow the Court, must come from the captain of the ship, the Secretary of the Department. I ask you, Mr. Secretary, to make unequivocal use of the powers vested in your office to give that order, thus to ensure that precedent opinions are followed and that judgments in specific cases are met with full and prompt compliance.

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