The U.S. Court of Appeals for Veterans Claims (CAVC) fully affirms only about 25 to 30% of the Board of Veterans’ Appeals' (BVA) decisions that it reviews. That is not a new phenomenon; it has been true for at least a decade, if not the entire existence of the court. If it sounds abysmal, it is. Appellate courts typically affirm 60 to 70% of the decisions that they review. Even Social Security decisions are affirmed almost 50% of the time. Why is the rate of affirmance by the CAVC so low?
A lot of it has to do with the transparency requirement for BVA decisions. The BVA is not a jury. It cannot simply announce a verdict and be done. It must provide adequate “reasons or bases” for it decisions. As I have explained in more detail elsewhere, this is a very demanding requirement that was established during the early days of the CAVC for unique, historical reasons. In application, this transparency requirement means that the BVA must address every single issue raised by the claimant or reasonably raised by the record.
What does that mean in practice? I have already noted the complexity of the law. Let us take a look at the application. If you are a member of the BVA, then you will probably sign about 800 decisions a year, or about four every business day (given that many days are spent holding hearings and doing all the ancillary tasks that come with any job). That means each day, you have to make sure you address not only every argument raised by the veteran, but also every issue reasonably raised by a stack of files that often looks something like the one pictured here to the side. Two volumes is a fairly typical size for a claim seeking a single benefit, and three or more is quite common. That is a lot of pages to get through in two hours or less. Moreover, the typical decision does not address only one disability, but two or three (or eight or twenty). Not only must the file be reviewed, but every relevant piece of evidence must be thoroughly addressed in terms of the weight being assigned to it for each of the benefits at issue. As the CAVC has repeatedly stressed, merely listing the evidence and announcing a decision is not a proper analysis.
So what are the odds that a veteran’s attorney who spends a day or more with the file will find a relevant nugget in the file that was not clearly addressed in the BVA decision? Judging by the remand rate from the CAVC, the answer is pretty high. Moreover, in many cases, the basis of the remand is not a piece of evidence that was entirely overlooked, but rather one that was not discussed to the satisfaction of the court. In other words, a main driver of the remand rate is not outcome-determinative errors, but insufficient-transparency errors.
The fact that the remand rate has been so high for so long suggests that there is a deep structural issue about the transparency requirement that needs to be faced. But what is it? It is not easy to tell. In an ideal world, it would be possible to try different solutions and see what happens. The ultimate metrics are time and outcomes. You could try different options, see if the outcomes of the claims changed, how long the decisions took, and what the comparative costs are. Of course, we do not live in an ideal world, so it is really hard to figure out the cost/benefit curve for the all the different options we could try. Given that reality, what options should we try to improve the BVA’s performance and how should we measure success? This is a ripe field for discussion.