In 2022 to 2023, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) continued its conversation with the Court of Appeals for Veterans
Claims (“Veterans Court”), Department of Veterans Affairs (“VA”), and veterans to help sculpt the jurisprudence coming from the youngest of the federal
courts, the Veterans Court. The Federal Circuit’s jurisprudence addressed ten main legal issues: class actions, petitions for writ of mandamus under the All Writs Act, defining standards of proof with the term “results from,” the benefit of the doubt doctrine post-Lynch, education benefits, less than honorable discharges, the rating schedule, implicit denials, equitable tolling and estoppel, and prejudicial error post-Tadlock.

In the past year, the United States Court of Appeals for the Federal Circuit (Federal Circuit) continued to define boundaries for the Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims (Veterans Court). These boundaries align more closely with congressional intent, especially with regard to the jurisdiction of the Veterans Court and the internal operations of the agency.

This Area Summary discusses eight major areas in which the Federal Circuit articulated important changes in veterans law. First, the Federal Circuit revisited the important and veteran-friendly 'benefit of the doubt' rule in Lynch and modified it. In Lynch, the Court analyzed the term 'approximate balance' and instructed VA to liberally consider evidence and apply the benefit of the doubt rule even where the evidence is not in exact equipoise. Second, the Federal Circuit limited the Veterans Court’s power to fact-find and narrowed its power to find prejudicial error in Tadlock. Third, in Anania, the Court strengthened the 'mailbox' rule by finding that the claimant’s, or advocate’s, own affidavit sufficiently proved proper mailing. Fourth, the Court broadened the constructive possession rules relating to VA-contracted medical reports in Euzebio. Fifth, the Federal Circuit looked to principles of equity in Arellano and Taylor to determine whether tolling or estoppel may be invoked when the question relates to the effective date for the grant of VA benefits. Sixth, the Court clarified effective date rules in Kisor, George, Ortiz, and Buffington. Seventh, in Military-Veterans Advocacy, the Federal Circuit overturned three regulations promulgated under the new Appeals Modernization Act, each related to supplemental claims—a new avenue for veterans seeking to reopen earlier decisions. Finally, in Smith, the Court continued to weigh in on attorney’s fees, an important issue for veterans and their advocates.

This Article continues last year’s in-depth review of veterans law cases decided by the Federal Circuit, published by the American University Law Review. In the year 2020, the Federal Circuit further clarified the law applicable to veterans cases, including the parameters of the class action device and the need for robust analysis in cases challenging agency delay and inaction. The court significantly expanded veterans’ ability to challenge regulations and manual provisions directly in the Federal Circuit. It created new law with regard to the presumption of competency applicable to Department of Veterans Affairs (VA) examiners and explored the parameters of VA’s duty to sympathetically read claims. The Federal Circuit also issued important decisions regarding “effective dates” impacting the amount of money veterans can receive where claims linger for years in the adjudicative process. Finally, the court confirmed the validity of VA’s definition of willful and persistent misconduct.

The last in-depth review of veterans law cases decided by the Federal Circuit was published by the American University Law Review in 2015. Since that time, the Federal Circuit has substantially changed procedural rules applicable to veterans cases, including authorizing the use of the class action device and clarifying the correct standard to use when challenging agency delay and inaction. In an important case with wide application to administrative law generally, the Federal Circuit addressed the issue of proper deference for agency regulations and policies. The Supreme Court granted certiorari in Kisor v. Wilkie and reaffirmed principles articulated in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., articulating a new three-step analysis. With regard to substantive developments in the area of veterans law, the Federal Circuit reversed a prior 2008 decision and provided final and effective relief for "Blue Water" Navy Veterans who have long fought for Agent Orange-related benefits. It is a remarkable time to be a veterans advocate, and we are pleased to provide this update.