Veteran claimants are often mystified by the nature of court review of the VA’s actions on their claims, and with good reason. The nature of that review is not what one might expect from the general understanding of what courts do.
First, what sort of agency action can be reviewed by the courts? There must be a final agency decision, i.e., a decision of the Board of Veterans’ Appeals finally resolving a particular issue. Note, importantly, that a BVA decision that denies some claims and remands others must still be appealed (within 120 days of the Board decision) as to the finally denied claims or the claimant loses the opportunity to do so. Note also that if the Board addresses and grants a claim, say for sinusitis, but there is evidence of a related condition such as rhinitis and the Board does not discuss it, it may be determined that VA “implicitly denied” the latter by granting the former, even though it didn’t mention it. The law on whether the Board can implicitly deny a claim is not entirely clear as yet, so if you have any doubt, consult a lawyer.
If you have a final Board decision, you appeal by filing a notice of appeal with the Court of Appeals for Veterans Claims. What will the court consider and resolve? One thing it will almost never resolve is whether you ultimately get benefits. This seems contrary to what we think of courts doing, based on what we read in the media or see on TV, but it has to do with the nature of these courts. Unlike the trial courts familiar from the media, the Veterans Court and the court above it, the Court of Appeals for the Federal Circuit, are appellate courts that do not make ultimate resolution of cases. Instead, their responsibility is to police the process, to make sure the law was followed correctly.
Claim adjudication involves application of rules of law to the facts of a claim. The law includes the procedures for claim development and the requirements to establish entitlement to benefits. The facts will determine whether the claim succeeds under the law. So there are two components – law and fact – to every claim. Courts thoroughly review the agency’s handling of the law but examine its consideration of the facts only in a very limited fashion. This is based on a congressional determination that the agency has special expertise in understanding the facts of veteran claims.
When a court finds error in a claim, it is because the VA has done something it ought not to have done, or failed to something it was required to do, under the law. That is why the court sends the case back (remands) to the agency to be redone, so the legal error can be corrected. Notice that this review has little to do with the facts and whether you ultimately win your claim. The Veterans Court will intervene in a fact determination by the agency only if it is “clearly erroneous,” so plainly wrong that there can be virtually no disagreement about it. Because evidence is rarely indisputably supportive of only one side of a claim, it is very difficult to show that a factual finding is clearly erroneous. On appeal of a Veterans Court decision, the Federal Circuit is not permitted to review factual findings at all, and may not even review “application of law to fact,” which makes its scope of review very narrow indeed.
This is why court review of agency decisions almost never resolves the ultimate question of entitlement to benefits. Once the courts correct the legal procedure, the VA must then make the ultimate application to the facts to determine the question of benefits. Unfortunately, it sometimes takes several challenges through the courts to get VA to handle the claim properly under the law.