The veterans benefits system we have today has grown phenomenally since its origin. It is essentially the one that was invented in 1917 for returning WWI soldiers, which began as only eight pages of amendments to the 1914 War Risk Insurance Act. Over the last century, however, an additional 2,000 pages of statues, regulations, and other authorities have been tacked on. One of the side effects of building the system by accretion is that a lot of the pieces do not fit together as well as they should, and some aspects today border on being incoherent. One particular problem is that we do not really understand the fundamental unit of the system: the claim. One would think that a system that processes more than a million claims a year would need to know exactly what a claim is. However, there is a fair amount of uncertainty as to what the scope of a claim is, and that creates a lot of headaches.
If you work in veterans law, one of the first things you learn is that the courts use the term “claim” differently than VA does. When VA reports the number of “claims” that are filed, it is reporting the number of applications, regardless of how many different benefits are claimed. Within VA’s 56 regional offices, different benefits are treated as “issues.” However, the courts treat each separate benefit sought as its own “claim.” So far, that is just semantics, but it grows harder.
Assuming each different disability is its own claim (and this turns out not to be so true), what exactly is the line between one disability and two? Suppose a veteran is shot in the leg. Is it one claim for the total injury, or is the muscle damage a separate claim than the scars? Suppose the bullet penetrates two different muscle groups; are those separate claims? In practice, it may even matter how the veteran describes his problem in his application.
Let us look at one specific problem. If a veteran has multiple diagnoses for the same condition, is each diagnosis a different claim? The answer, of course, is, “It depends.” On the one hand, if the two diagnoses are both known before a final determination of benefits is made, then they are probably part of the same claim. However, if a new diagnosis for the same symptoms is made after a claim is denied, then the new application is not an attempt to reopen the same claim, but is a different claim even though it is for the same symptoms. It would take a while to explain why this is so, but the short version is that it is the result of different cases trying to apply a “veteran friendly” definition of “claim” based upon the facts of the case at hand, rather than taking a systemic view. Although veteran friendliness is the touchstone of the system, the problem is that rules can be friendly to a veteran in one procedural posture, but not in another. Problems can occur when the appellant arguing for a “veteran friendly” interpretation is actually in an unusual procedural situation where the interpretation “friendly” to his or her claim is bad for most other veterans.
One approach is to use veteran friendliness as a quantum theory of law. Instead of black-and-white rules, the applicable rule remains in an indeterminate state until you observe the claim at hand and see which version of the rule would be veteran friendly. That may sound unworkable, but that is the position taken by the veteran in a case called Tyrues v. Shinseki. The fundamental problem of Tyrues is that different ways to determine finality are veteran friendly in different ways in different circumstances. Sometimes a veteran may want a claim to be “final” now to get immediate appellate review, while other times a veteran will want to look backward and say a claim was never final previously to get appellate review and an earlier effective date long after a decision was made.
Tyrues presents the specific problem of whether finality should attach to individual theories of entitlement or only to the final resolution of whether a benefit is granted. The case has gone back and forth between the U.S. Court of Appeals for Veterans Claims (CAVC) and the Federal Circuit for eight years with one side trip to the Supreme Court, and is currently pending at the Federal Circuit for the fourth time. Although opposing opinions from the CAVC have different theories as to which rule of finality is the friendliest to veterans in practice, the veteran’s attorney argues that whether a Board of Veterans' Appeals decision is final should be up to the veteran. In other words, it should remain in an undetermined state until the veteran makes a choice, whether that choice is made immediately or years later.
Schrodinger might approve of having finality remain in a state of uncertainty until observed by a later adjudication, but I am not sure how you explain that to veterans or lay adjudicators in a way that helps them to easily understand what they are supposed to do. In particular, what do you tell an adjudicator who needs to know whether a past decision is final, but the veteran has never made a decision?