The Veterans’ Judicial Review Act Twenty Years Later: Confronting the New Complexities of VA AdjudicationNYU Annual Survey of American Law (2010)
AbstractWhen judicial review was introduced to the veterans benefits system twenty years ago, there was great concern that it would push the informal, “claimant friendly” process towards a much more adversarial model. Although judicial review has improved the system in many ways, the system continues to suffer from serious problems. Much of the discussion about the current problems facing the VA adjudication system accept the false premise that the system is struggling to find balance between a paternalistic charitable model and an adversarial entitlement model. This has obscured the true conflict within the system. In reality, the VA system has been rooted in a hybrid paternalistic entitlement model since before judicial review was introduced. By making the promises of the hybrid paternalistic entitlement model enforceable, judicial review has illuminated the central tension inherent in it. The model attempts to be both complex (in order to comprehensively cover all deserving claimants) and informal (to avoid denying claims on procedural grounds). Twenty years of judicial review and corresponding congressional and agency reactions have simultaneously pushed the system towards more complexity and more informality. However, none of stakeholders have acknowledged the difficulties inherent in trying to operate a complex administrative system in a highly informal manner. Only by refocusing the debate upon this emerging reality will those involved be able to address and remedy the problems currently plaguing the system.
Citation Information66 NYU Annual Survey of American Law 251 (2010)