Ending the Second "Splendid Isolation"? Veterans Law at the Federal Circuit in 2013

INTRODUCTIONThis Article continues the trend of reviewing the veterans benefits case law of the U.S. Court of Appeals for the Federal Circuit and related developments over the preceding calendar year.1 Part I provides context for the issues raised by the cases before the Federal Circuit in 2013. Part II of this Article reviews changes in the composition of the Federal Circuit that have been ongoing since 2011. Part III contains a review of the veterans law cases decided by the Federal Circuit in 2013. Part IV discusses some of the themes and possible future directions raised by the cases.2 This Article concludes with an addendum that continues the statistical look at veterans law in the Federal Circuit.3I. BACKGROUND TO THE FEDERAL CIRCUIT'S 2013 VETERANS LAW CASESThe Federal Circuit reviews final decisions of the U.S. Court of Appeals for Veterans Claims ("the Veterans Court"). These cases originate when claims for veterans benefits are submitted online or in person at one of the U.S. Department of Veterans Affairs (VA) regional offices ("ROs"), and are processed, developed, and adjudicated at one of those offices.4 VA will assist the veteran in developing evidence in support of the claim, and once all evidentiary development is deemed complete, VA will adjudicate the claim.5 If a claim is denied, the RO will issue a Rating Decision informing the veteran of the results of the adjudication and the underlying reasons for the denial.6 A veteran who is dissatisfied with any part of the result can submit a Notice of Disagreement, in which case VA will prepare a Statement of the Case ("SOC").7 After submitting a Notice of Disagreement, the veteran has several options: ask for a de novo review of the claim at the RO level; or, "perfect the appeal" by filing a substantive appeal with the Board of Veterans' Appeals8 ("the Board").The Board is an internal VA body that provides review of RO decisions within the Agency.9 It issued 34,028 decisions in 2000, but as with the rest of VA, its workload has increased dramatically: it issued 39,076 decisions in 2006; 43,757 decisions in 2008; 49,127 decisions in 2010; 48,588 decisions in 2011; and 44,300 decisions in 2012.10 Showcasing one of the various differences between the worlds of civil law and veterans law, the Board-although an appellate body-has the power to develop evidence and to find facts de novo.11 The Board must "account for the [persuasiveness of the evidence] . . . , analyze the credibility and probative value of all material evidence . . . , and provide the reasons for its rejection of any such evidence."12Until 1988, VA was the only agency insulated by statute from judicial review, and, due to its perceived "paternalistic" nature,13 it was not even subject to the Administrative Procedure Act (APA).14 In 1988, Congress passed the Veterans' Judicial Review Act,15 which established the Veterans Court16 as an Article I court with judges appointed for fifteen-year terms.17 The Veterans Court may decide cases by non-precedential single-judge decisions, precedential threejudge panels, or full-court opinions.18 The Veterans Court reviews the Board's factual findings under a "clearly erroneous" standard,19 reviews the Board's interpretations of statutes and regulations under a de novo standard,20 and reviews the Board's legal conclusions under an "arbitrary, capricious, . . . abuse of discretion, or otherwise not in accordance with law" standard.21 The Veterans Court also reviews a Board decision to determine whether it is supported by an adequate statement of reasons or bases for its findings and conclusions.22Whereas VA's system is designed to be non-adversarial and claimant-friendly, the Veterans Court is an adversarial forum.23 However, only claimants may appeal to the Veterans Court,24 which means that the substantive law created by the court tends to "act[] as a one-way ratchet," with the ability to add rules that favor veterans but a highly limited ability to create rules that favor VA. …