A recent ruling by the U.S. Court of Appeals for Veterans Claims could accelerate adjudication of thousands of veterans' disability claims appeals, but only for cases awaiting certification from the VA.
The court ruled June 13 that VA needed to move forward on certifying the claims of veterans who have waited more than 18 months for the designation, saying the affected veterans already have faced delays that were "particularly intolerable because they consist of nothing but waiting in line."
For a veteran to appeal a disability claims decision, he or she must fill out an Appeal to the Board of Veterans Appeals form, known as a VA Form 9, and the department must review the case to ensure it contains all the necessary documentation. If the claims appeal is complete, VA then certifies it to the Board of Veterans Appeals.
But for at least 2,700 veterans, VA has taken no action, letting their appeals sit, unopened, for more than two years.
One of the plaintiffs in the recent case, Pamela Whitfield, has waited more than six years.
The court found this and the VA's inaction "intolerable."
"We are not content to wait for the [VA] secretary to remedy these unreasonable delays on his own," wrote the court in a 2-1 decision. "The secretary has had many years to act and initiate pre-certification review of class members' cases, and he has failed to do so."
The court ordered VA to determine who has waited 18 months or longer for certification and identify them by Aug. 12. VA must then certify their appeals by Oct. 11.
The board then will consider the claims by docket number, with the oldest going first, explained Bart Stichman, executive director of the National Veterans Legal Services Program, which, along with law firm Covington & Burling LLP, represented the plaintiffs in the case, Godsey v. Wilkie.
While the case was brought by four plaintiffs, the decision will affect all veterans who have filed a Form 9 and waited 18 months or more for certification. This is because the court, for its first time, ruled the case a class-action suit.
The judges decided that a class-action decision "is a more efficient and effective vehicle for resolving this case than a precedential decision" focused on each individual veteran.
The class action marks a milestone for the court, which, since its inception in 1988, maintained it did not have the power to certify a class-action suit. In 2017, however, the U.S. Court of Appeals for the Federal Circuit ruled that the veterans court had always had the authority.
Stichman said the June 13 ruling will "help ensure consistency and fairness across the VA's processes," because class-action lawsuits can bring about corrections to address a large affected population, instead of addressing -- or not addressing -- individual plaintiff's issues separately.
"It has been a long time coming," Stichman said of the class-action certification. "At last, this order opens the door for veterans to receive efficient, consistent and fair adjudications just as Congress intended."
Veterans seeking more information and who have a Form 9 but have not been certified, can contact NVLSP at email@example.com.