Out of the Trenches, Into the Sea
When I started my practice, it was right into the trenches of the VA. Doing battle as best I could for Veterans. The Regional Office and the Board is where the action happens. Its where benefits are granted or denied. Where your client gets relief just in time to avoid eviction. Act and react. Doing a deep dive review and formulating the best plan of attack to get this Veteran the benefits they deserve, as quickly as possible. That is what practicing and litigating is about. Its what gets a Veteran the relief that they desperately need. Recently, I have had to leave the trenches and go out into the sea, but with good cause. Not as a means to abandon ship, or you, but to (hopefully) help more Veterans.
The desire to help Veterans who have defended our freedoms is as old as the Nation itself. Congress first sought judicial assistance in affording Veterans relief when it adopted the Invalid Pensions Act of 1792, which provided “for the settlement of the claims of widows and orphans...and to regulate the claims to invalid pensions”. Just shy of 200 years later, in 1988, President Reagan signed the Veterans’ Judicial Review Act, which established as a national Court of record the United States Court of Veterans Appeals. In 1998, the Court’s name was changed to the United States Court of Appeals for Veterans Claims (“CAVC” or “Veteran’s Court”). Before the Veterans’ Judicial Review Act, for nearly 60 years, VA rules, regulations, and decisions lived in “splendid isolation”, unconstrained by Judicial review¹. What this all means is that prior to the creation of the Veteran’s Court, Veterans were stuck. The VA had the final say, and that’s that. If the VA’s interpretation of a regulation or statute was way out of line with what Congress intended, oh well. Since the Court’s inception, it has strived to carry out the intent of Congress, and in turn, the Nation—to “protect those who have been obliged to drop their own affairs to take up the burdens of the Nation”.² The Court spent its early years crafting case law, specific to Veterans, sourcing much of its early jurisprudence from principals found in other federal Courts. Afterall, as a brand new Court, they were literally creating case law from nothing. There was no guide. Despite the enormous challenge, the Court did well and many of its early cases are still “good law” and cited to often.
Fast forward to today’s time. The Veteran’s Court receives more appeals than nearly any other federal Court. In 2024, the Court received 8,937 appeals³, a trend that is only continuing to grow. No matter what caliber of advocate you are, there are just certain things you can’t change within the VA, certain issue you could never overcome. Sure, you may win an individual case. While that undoubtedly creates a lifetime impact for a Veteran and his family, it isn’t a “system wide” impact. Certain issues require us to get out of the trenches and out into the sea, where we can obtain a better view of the battlefield. In other words, the Veteran’s Court is a necessary instrument for change, both for individual Veterans in their individual Court appeals, but also in the Court’s inherent authority to issue precedential or “across the board” relief.
With that backdrop in mind, recently, I have gotten out of the trenches to help litigate a serious case, a case that need the attention of the Court. This case deals with literally every single Veteran who has received a decision, of any kind, from the VA, between 2019 and late 2024.
Your Right to a Hearing
Its no secret that I am not afraid of hearings. I love to do hearings. VA proceedings are legally considered ex parte, meaning you the Veteran are not a part of the proceedings until you get that 25-page denial in the mail. Very rarely, if ever, do you actually get an opportunity to interact with your decision maker. The solution to that problem? A hearing.
The right to a hearing is not something new within the VA. 38 C.F.R. § 3.103(d)(1), states that you, the Veteran, are “entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter before VA issues notice of a decision on an initial or [a]supplemental claim.” As best I can tell, this right has been on the books since at least 1999—likely longer, that was just with a quick glance into the historical C.F.R. Even better, 38 C.F.R. § 3.103(b)(1), requires the VA to notify Veterans of decisions “made by VA affecting the payment of benefits or granting of relief.” The regulation continues to explain that such right to notice includes “the right to a hearing on any issue involved in the claim as provided in paragraph (d) of this section.”
What does all this mean for you and why is it important? For one, it is your right as someone claiming VA benefits. For two, you have, well a right to be notified about your rights. How about that. Anyhow, back to why this is important for you. If you are like me, I often wonder if the VA was even look at the right guy’s file when they made a decision. Guess they totally missed those 3 deployments to Iraq somehow? What do you mean I don’t have back problems? I sent the VA the MRI showing you couldn’t fit a piece of paper between those discs.
You get the picture. Another big reason for wanting a hearing is the opportunity to humanize the VA process. The only human interaction you get with the VA is during a C&P exam. At best, you go to a contractor in the back of a shopping mall, who looks you over for 3 minutes and sends you on your way. (I have heard horror stories and am aware of a few other examples of just how bad these contract C&P exams can get.) Other than that, you don’t get to personally interact with the VA when it comes to your claim. The only interaction you get is via the mail when a decision comes, or another “Important Your Reply Needed” letter. The hearing gives you a real opportunity to humanize this process, speak to someone about your case. Tell them what evidence the VA has overlooked, when symptoms began, how you would take a bath in jet fuel daily, and started shaking like a stripper two years after service, until the doctor finally said you had essential tremors. The opportunity and right to a hearing is very powerful within the VA, yet, is is something very few Veterans even know about. Not to mention the best part about doing a hearing, the VA employee you have the hearing with has to be the person who decides the case. If for some reason they can’t the VA has to give you the opportunity for a new hearing. In other words, the opportunity and benefits that come with a hearing are numerous and a hearing is a powerful tool that you have at your fingertips.
The problem?
Well, although this regulation has been on the books for many years, someone really screwed up when recreating the updated appeal rights form. I mean big time. Remember, you have a right to the hearing, and a right to be notified about this right.
See any differences? Oh, yeah. The VA didn’t start giving notice of this right until August of 2024. When they updated their forms to implement the AMA, which took effect in 2019, someone totally forgot about that whole hearing business. Woah. So, from February of 2019 until August of 2024, every decision the VA has ever mailed you doesn’t properly notify you of what your appeal rights entail. Why is that legally significant? Why does that matter? Well, legally, you have a right to receive notice of VA decisions, and the notice has to be complete and accurate. If there is something wrong with the notice, then, it is as if the notice was never issued to begin with.
Think of it like a redlight camera. You get a ticket in the mail. It has to include certain things. It has to have a picture of your car plowing through. The police department has to send it to your address, etc. Let’s say for whatever reason, they didn’t include the picture of your car along with the ticket. Or, they didn’t tell you where and how you could show up to contest the ticket. Legally, that ticket is null and void, because you haven’t been given proper legal notice. Same thing here.
What this translates to is hundreds of thousands of decisions the VA sent between 2019 and 2024 aren’t worth the paper they are printed on, because it doesn’t give proper notice of what your appeal rights are. So what? Why does any of that matter? It matters for a few reasons, mainly, effective dates.
Consider Johnnie who had his PTSD claim denied in 2019. For whatever reason, he gave up, and never appealed. Because of that, he lost his effective date, and any backpay that came with it. Fast forward to 2024. Johnnie gives it another go. Wham, bam, thank you ma’am, here is your 70% for PTSD, but effective 2024, since you never appealed that 2019 decision. Had the VA let Johnnie know of his right to a hearing in 2019, he could have taken them up on that offer, had a hearing, and provided whatever piece of the puzzle the VA was missing. But, since that didn’t happen, Johnnie has missed out on tens of thousands of dollars. So have thousands of other Veterans. Literally anyone who has received a decision between 2019 and late 2024. Or, perhaps the Board denied your PTSD claim because you didn’t provide enough information to help the VA corroborate the in-service stressor. Again, had the VA notfieid you of your right to a hearing, you could have showed up and told them about that. Asked the person conducting your hearing “hey, what am I missing here? What is it you need from me?” Something you just can’t accomplish by reading another one of VA’s “important your reply needed” letters. The magnitude of difference a hearing can make.
Taking Action
In late 2024, the VA put out a memorandum that it was updating its appeal rights form, and adding in language to inform you of your right to a hearing. It was like a cannon went off inside my head. To be honest, I hadn’t even noticed this issue on the appeal rights form. But, when I heard about the change, I combed through some old decisions. Sure enough, no mention of a right to a hearing. I knew I had something on my hands. I pulled up the C.F.R. Sure enough, the right to a hearing and the right to be notified of the ability to have a hearing, was right there in black and white. You remember Annette? Well, she is a client of mine and is in the same boat. She never got notified that she could have a hearing to help justify her late husband’s claim.
She was the perfect candidate to lead this charge. I had the crazy idea to take her case up to the Veteran’s Court—out of the VA trenches, and file a Class Action request. Not just to help Annette, but to help every Veteran who has received a decision with defective notice. I also knew this was something the VA would fight hard. I needed some help to put it all together. I reached out to my good friend Ben Binder. Him and I already do a lot of Court appeals together anyhow. Plus, he is a wizard when it comes to case law and litigation strategy. He has filed over 1,000 appeals at the Veteran’s Court. To my surprise, he was onboard and willing to give it a go.
Copy of Motion for Class Certification and Class Action
We worked on this for a few weeks. I am pretty proud of what we ended up putting together. All in all, we have asked the Veteran’s Court to certify a class for those Veterans who didn’t get the correct notice. This case has the potential to bring back hundreds of thousands of dollars worth of benefits to deserving Veterans. Probably even millions worth. A little more than a month after we filed our request, the case was submitted to a panel, consisting of Chief Judge Allen, Judge Bartley, and Judge Lauer. On May 30, 2025, the panel ordered the VA to respond to our Motion within sixty days. So, I am eagerly awaiting the response to see what will happen.
While I hate to get out of the trenches, sometimes it is needed. Not only for people like Annette, but other Veterans effected by this issue. It isn’t often you get such a huge opportunity to help thousands of Veterans. Especially when the issue presented effected every Veteran who got a decision during this timeframe. There simply are certain things you cannot accomplish at the VA, no matter how hard you fight. This issue required the attention of the Court. It needed a bird’s eye view, and boy have we gotten one.
I don’t know what the VA’s response will be, nor do I know what the outcome could possibly be. But, to say I am eager to see the outcome is an understatement. However, I am even more excited to be a part of something big like this. I truly think this request for class certification has the potential to help thousands of Veterans. I am just glad I had the idea, the knowledge, and the resources to help put it together. Ben was a big help getting things together. Regardless of the outcome, I am proud of the work we put into this.
Stay tuned.
Godspeed.
¹ See Brown v. Gardner, 513 U.S. 115, 122 (1994) (Souter, J.).
² See Boone v. Lightner 319 U.S. 561, 575 (1943).
³ See CAVC Annual Report for Fiscal Year 2024.
