VA’s Conduct Regarding Due Process Rights Is Declared Unlawful by Federal Circuit Court

Veterans must wait an extraordinary amount of time to obtain a decision on an application for disability benefits. Quite often the decision is a denial. The veteran then has the option to appeal the denial to the office of origin, Veterans Affairs Regional Office (VARO), which is exactly where the application was filed and denied. After the VARO confirms its own denial, the veteran may then appeal to the Board of Veterans Appeals (BVA) (also an appellate level within the confines of the VA – administrative law judges who work for and are paid for by the VA).

Veterans are afforded due process rights as part of the application and appeals processes. However, on August 23, 2011, the VA promulgated a new regulation exempting the BVA from certain due process procedures outlined in 38 C.F.R. § 3.103, which govern claimant hearings before the VA.  Moreover, the VA dispensed with the legally required formal public comment period, making the new rule effective immediately. The National Organization of Veteran Advocates (NOVA) opposed the VA’s denial of due process rights at BVA hearings and filed a Petition for Review in the Court of Appeals for the Federal Circuit.

On March 21, 2013, the Federal Circuit Court found the VA’s actions unlawful and threatens sanctions as a result of VA’s conduct. The Court is requiring the VA to show cause why sanctions should not be imposed on the responsible officials, recognizing that “sanctions may be needed to motivate VA in the future to treat its commitments and representations to this court and opposing counsel with the seriousness to which they are entitled.”

This decision by the Court is a huge victory for veterans. Lawyers with Purpose, LLP, specifically thanks the advocates of NOVA for their unyielding efforts on behalf of veterans. To read the complete Order of the Court, go to: http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-7191.Order.3-18-2013.1.PDF.

Victoria L. Collier, Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder, Lawyers with Purpose, LLC, and author of 47 Secret Veterans’ Benefits for Seniors…Benefits You Have Earned but Don’t Know About.