I think that there is a common pitfall that is often made in teaching or even just describing the veterans benefits system. That mistake is treat the system as completely sui generis, even though it deals with issues common to most legal systems. This trap is most common when it comes to VA’s procedures. However, VA’s procedures fill the exact same need as the procedures of any other legal system: to assemble the information necessary to make a decision on the merits. Therefore, I think there is a lot that might be learned by looking at apt procedural analogies.
VA’s first procedural duty is to notify the claimant of the information and evidence necessary to substantiate the claim. To me, that sounds a lot like a pleading requirement. It is not quite normal pleading because, instead of the veteran beginning by telling VA what he or she intends to prove, VA tells him or her what to prove. The reversal of the normal pleading dynamic demonstrates how the system is designed to be paternalistic and non-adversarial. However, can we learn something about VA’s notice duty from the theories that explain traditional pleading requirements? I am not sure, but I would love to see a civil procedure expert take a crack at that problem.
One aspect of VA’s notice duty that is in desperate need of examination is how to reconcile the extraordinary complexity of veterans law with the limited attention span and sophistication of the average claimant who does not have the benefit of a lawyer to advise him or her. To quote a veteran: “I would start reading these letters with five pages of legal garbage and just give up.” As much as VA’s notice duty is intended to make the system more accessible, there are a lot of complaints that it does not fulfill that purpose.
The first rule of communication is that if the audience did not understand you, then you failed to communicate. To put it another way, you can never blame the audience. It is your job to figure out how to reach them. The challenge in drafting notice letters is how to simplify really complex legal issues that often have several viable theories of entitlement into an understandable letter that clearly sets forth what the claimant needs to do to prove the claim. On the one hand, if you include too much information, then the effort is wasted because the claimant probably will not be able to digest it. On the other hand, if you do not include enough information, then you may leave out potential theories of entitlement or may not provide enough detail as to exactly what evidence is required. This raises the question of whether VA’s notice duty is actually designed to maximize the assistance it provides veterans.
In an adversarial process, you can keep the pleading requirements fairly minimal and let the discovery process clarify the case. However, in the veterans benefits system, the discovery process (the duty to assist) depends on what information the veteran supplies in response to the notice letter. Accordingly, problems with notice letters can have a huge impact on the future of a claim. Of course, both the veterans benefits system and the traditional legal system have to wrestle with the difficult empirical question of how much can be saved on discovery through a more effective pleading system.
Ultimately, the notice provided by VA at the beginning of the system should be designed to maximize the chance that it will be understood. Trying to pack in more information than the average veteran can absorb under the guise of full disclosure is not helpful. In fact, it is counterproductive. The next question is, given the limits on how much a veteran will actually read, what can you put in the letter that will maximize the value of the duty to assist and the chances that a claim will ultimately receive the correct decision? I think that this is a question that is worth studying because it might teach us something about how to improve pleading rules generally, even beyond the veterans benefits system.