Too Much Complexity is Not “Veteran Friendly”

Thanks again to Dan and Al for letting me hang out here this month.  I hope that those of you who have stayed for the whole ride through the field of veterans law have found some food for thought. 

I want to end back where I began, with the big picture.  Just three years before the Veterans Judicial Review Act ended the veterans benefits system’s splendid isolation from judicial review, the Supreme Court, speaking through Chief Justice Rehnquist, observed:

It is scarcely open to doubt that, if claimants [in the veterans benefits system] were permitted to retain compensated attorneys, the day might come when it could be said that an attorney might indeed be necessary to present a claim properly in a system rendered more adversary and more complex by the very presence of lawyer representation. . . .  And this additional complexity will undoubtedly engender greater administrative costs . . . .

Walters v. Radiation Survivors, 473 U.S. 305, 326 (1985).  Twenty-five years after the passage of judicial review, this prediction of Walters has arguably come true. 

There are plenty of problems to attack in veterans law, but the defining problem is too much complexity.  As I recently argued to the House Veterans Affairs Committee, the most important project for VA, Congress, and the stakeholders to undertake is trying to find a way to combat the excess of complexity.  It will be a phenomenally hard task.

The first element of the problem is simply reducing the rate at which complexity is growing in the system.  The ever-growing complexity of medical knowledge already drives an increase in complexity for a system that is based upon determinations of medical causation.  On top of that, there are the additional problems of attorney incentives to increase complexity and the political habit of “solving” problems by adding more rules, steps, and reviewers to the process.  Merely combating these forces will be a challenge.

The harder part of the problem is actually moving the needle in the opposite direction.  As J.B. Ruhl and James Salzman brilliantly illustrated in Mozart and the Red Queen:  The Problem of Regulatory Accretion in the Administrative State, 91 Georgetown L.J. 757 (2003), it is very, very hard to remove rules when each individual one can be justified on its own terms and appears to have a de minimus effect by itself.  Nevertheless, a problem of burdensome system effects is created by the accumulation of countless little effects that each seem reasonable in isolation.

The obvious way to avoid 10,000 fights over removing 10,000 rules is to start with a blank sheet of paper and build something completely new.  However, the stars have to align just right before you can throw out thousands of pages of statutes and regulations that have accumulated over a century.  Nonetheless, there is some hope that we might identify pockets of the system that could be rewritten.  Veterans law is not particularly modular, but you could begin the process of reinventing it by chunking it into manageable pieces:  pieces small enough to handle, but large enough to make a difference.

Even with much smaller blank sheets of paper, you must first take a careful look at your baseline assumptions.  Is the operational budget of the adjudication machinery taken as a given or a variable?  What about the number of employees performing each type of work?  What about the qualification of those employees ‑‑ should we continue to try to handle everything with non-attorney adjudicators on the frontlines?  What are the targets for processing time, accuracy, and granularity of outcomes?  These are really big questions that you need to at least begin to wrap your arms around, or your aim may well be either too ambitious or too limited.

Beginning to answer the big questions leads you back to the issue at the heart of veterans law:  What does it mean for the system to be veteran friendly?  Most of us would agree that the current system that is mercilessly mocked by Jon Stewart is not living up to that ideal.  However, we need to get past the negatives and have a positive discussion about what it is we want in our veterans benefits system and how much we are willing to invest to obtain it.  This might be the hardest step.

If we are to come to a new understanding of veteran friendliness, which recognizes the limits imposed by complexity and system effects without a crisis forcing a breaking point, then we need to start a robust conversation about the system now before the tide rises any further.  I firmly believe that the challenges of veterans law are not really that different from many others facing the legal academy, and therefore the academy can help a great deal.