Let’s Not “Fight Like Hell” Without a Strategy: At the VA, Put First Principles First

As the Department of Veterans Affairs (VA) reels from scandal, President-elect Joe Biden’s nominee for secretary of veterans affairs, Denis McDonough, promises to “fight like hell” for veterans and their families. He’ll need to, considering the challenges veterans continue to face. To that end, Biden’s transition team should set out his administration’s intent for a national veterans’ strategy, including overhauling veterans’ benefits laws and regulations, based on the nation’s obligation to veterans as a first principle. Such a principle is not only a matter of justice; it has profound implications for national defense and national security.

The United States publishes a national security strategy and national defense strategy. This makes sense. Strategies help align ways and means to ends. They ensure unity of effort. While not sufficient, a strategy is necessary for responsible administration. These are among several reasons in favor of a national veterans’ strategy. But developing a national veterans’ strategy will require a reckoning of first principles. This is not least because, while president after president has urged the nation’s obligation to veterans as a first principle, the system of administration and adjudication of veterans’ benefits claims has remained unprincipled, with veterans often left behind.

How the VA Claims System Works, and Doesn’t

For background, here’s how the system works. A veteran seeking benefits must submit a claim to the local VA regional office. If the regional office denies the claim, the veteran may appeal to the VA’s Board of Veterans Appeals. Only over the last generation have veterans been able to appeal Board of Veterans Appeals’ denials to a court, the U.S. Court of Appeals for Veterans Claims (CAVC), which Congress established in 1988. If the CAVC says no, the veteran may appeal to the U.S. Court of Appeals for the Federal Circuit, and, ultimately, to the U.S. Supreme Court.

The system of veterans’ benefits administration and adjudication has its problems, mostly due to the system being overburdened. Meanwhile, veterans languish. A VA news release from 2016 characterized the appeals process as “complicated and ineffective, and Veterans on average are waiting about 5 years for a final decision on an appeal that reaches the Board of Veterans Appeals, with thousands waiting much longer.”

Meanwhile, in its 2019 annual report, the VA boasted that the Board was “able to achieve a high quality rate” based on its system of quality review. Yet, a July 2019 report from the Stanford Institute for Economic Policy Research found “no appreciable benefit of [the Board’s] quality review.” The two reports raise an important question: Can judicial review help solve VA’s mass adjudication problems? As the Stanford report suggests, the answer appears to be no. Now is the time to choose the better of what history reveals as competing propositions. Veterans’ care is either a matter of gratuity or the nation’s obligation—it cannot be both.

Against the Competing Propositions of Veterans’ Benefits

On the one hand, the nation’s obligation to its veterans is embedded in the framework of veterans’ benefits laws and regulations. For this reason, the principle would appear to be well established, based in no small part on the nation’s history. Still, far from respecting veterans’ care as the nation’s obligation, the law has long regarded veterans’ benefits as mere gratuities. On the foundation of this proposition, Congress and courts, one way or another, have shut the doors to judicial review of veterans’ benefits claims.

George Washington himself emphasized the nation’s obligation to veterans when he resigned his command of the Continental Army. Here is Washington in his own words:

Before I conclude the subject of public justice, I cannot omit to mention the obligations this Country is under, to that meritorious Class of veteran Non-commissioned Officers and Privates, who have been discharged for inability . . . nothing could be a more melancholy and distressing sight, than to behold those who have shed their blood or lost their limbs in the service of their Country . . . ” [The American Veterans Disabled for Life Memorial features these excerpts as an inscription on its Wall of Gratitude.]

Yet with no power to tax, as noted, the Confederation could not fulfill the Second Continental Congress’ promises to veterans of bounty lands and pensions. Because of this, many saw the need for a stronger federal government. When the framers of the U.S. Constitution replaced the Articles of Confederation, one of the purposes noted in the preamble was the necessity “to provide for the Common defense.”

Also notable is President Abraham Lincoln’s Second Inaugural Address of 1865. As the VA observed (and as historian David Herbert Donald noted), with the words to care for him who shall have borne the battle, Lincoln reaffirmed the nation’s obligation to veterans. However, in 1883, citing an earlier case from 1857, the U.S. Supreme Court said, “No pensioner has a vested legal right to his pension. Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute, or recall, at its discretion.” (Courts carried forward this passage, word-for-word, expanding it to refer to all veterans’ benefits.)

Finally, consider the GI Bill of Rights. In a series of speeches on July 28, October 27, and November 23, 1943, President Franklin Delano Roosevelt (FDR) emphasized the nation’s obligation to veterans. When he signed the GI Bill into law on June 22, 1944, the president noted that Congress had carried out the intent he had outlined in his speeches. The nature of the bill inspired its byname. “It’s a bill of rights. . . . That’s it. . . . The GI Bill of Rights!” As the story goes, these were the words of Jack Cejnar, the American Legion’s publicity director, who had a prominent role in drumming up public support for the measure, just as the Legion had a prominent role in shaping the bill.

However, 10 years to the day before his speech of July 28, 1943, in which he first noted the nation’s obligations to veterans, FDR signed into law a bill that expressly precluded judicial review of veterans’ benefits claims. This was the so-called Economy Act of 1933. In it, Congress delegated to the president the power not only to make regulations on veterans’ administration but also to decide disputes as to regulations applied, entrenching in its no-review clause that veterans would have no right (or even ability) of judicial review.

Here then is a usurpation of judicial power that stops any veteran from taking his case to court if he believes that he is not receiving fair treatment. Yet the Congress voted to take away from a defender of the flag, the right to go into court if he so sees fit. What do you think of bartering away so sacred a right?

This observation, from congressman Everett Dirksen to a fellow congressman, offers perspective. Apparently, the House thought well of it, pushing the bill through on a take-it-or-leave-it basis — no amendments, no arguments — by a vote of 266 to 138 (Dirksen voted against). Armed with the no-review clause, in 1933 FDR established, by executive order, the Board of Veterans’ Appeals. The no-review clause remained, in the words of the U.S. Supreme Court, “substantially unaltered” through the Vietnam Era until, in 1988, Congress passed the Veterans’ Judicial Review Act, which established the CAVC and opened the door to judicial review. Still, the CAVC has hardly been able to solve VA’s mass adjudication problems.

Grounding Veterans Benefits in a Sounder Principle

In a 2020 webinar symposium keynote address, former CAVC Chief Judge Robert Davis observed,

The statutory and regulatory framework that we call the present system has historically been cobbled together piecemeal . . . [I]t is a complex, difficult, and antiquated system that inefficiently administers veterans’ disability benefits. . . [T]o make this system work better, now is the time to consider and begin to talk about alternative VA benefit models; a time to rethink the present structure.

(Former VA Secretary David Shulkin would agree.)

Rethinking the present structure should be at the heart of a national veterans’ strategy, on the principle that the people have an obligation to the nation’s veterans. Establishing the nation’s obligation to veterans as a first principle would help remedy the misconception that veterans’ benefits are mere gratuities. It would help ground the overhaul of veterans’ benefits laws and regulations in a sounder principle. The imperative is sociopolitical, but also practical. It is vital to military recruitment and retention, the backbone of the all-volunteer force.

When Mike Haynie and Nick Armstrong of Syracuse University issued the call for a national veterans’ strategy in 2013, they noted that, “First, we mean starting a national dialogue to define our societal obligations to those who volunteer for military service.” And, as noted in their corresponding report, “the consequences associated with failing in our collective obligation to the nation’s veterans are high; such a failure will have adverse implications for the sustainability of an [all-volunteer force] and thus our national security.”

The good news is that now is as appropriate a time as any to begin the work on a national veterans’ strategy. Notably, at least the president-elect and his wife, Jill Biden, recognize the obligation. (To be fair, President Donald Trump also noted the obligation.) Appointments for the VA review team also bode well for veterans. The team includes two leading experts of civil-military relations, Kayla Williams and Phil Carter, each of whom has experience leading the Military, Veterans, and Society Program of the Center for New American Security (CNAS), “the only think tank that views challenges facing America’s service members, veterans, and military families as an issue of national security.” (As it happens, Carter served as a consultant on the national veterans’ strategy report and elsewhere wrote on the nation’s obligation to veterans and the implications of failing).

To the transition team: Set out the administration’s intent for a national veterans’ strategy and set in motion an overhaul of veterans’ benefits laws and regulations, based on the nation’s obligation to veterans as a first principle.

Photo: Charles Ommanney/Getty Images

 

About the Author(s)

T. Nelson Collier

Reserve Marine and a staff attorney for The Veterans' Consortium Pro Bono Program. Views expressed are his own. Follow him on Twitter (@TNelsonCollier).