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Tuesday, January 22, 2013

Vietnam Veterans, Afghanistan Veterans Hopeful as Advocate for Veterans’ Rights Appointed as Judge

 

President Barack Obama nominated William Greenberg to the United States Court of Appeals for Veterans Claims on Nov. 15, 2012. The Senate confirmed him unanimously on Dec. 21, 2012, and he was sworn in on Dec. 28, 2012 to a 15-year term as Judge. Judges are appointed to the U.S. Court of Appeals for Veterans Claims by the President of the United States and confirmed by the United States Senate. 
 
Judge William Greenberg has an established long history of being an advocate for veterans’ rights. According to a White House Press Release, Mr. Greenberg served in the Reserve Components of the United States Army for 27 years and was elevated to the rank of Brigadier General. He founded the NJSBA Military Legal Assistance Program in 2006, which program provides legal assistance to recent veterans. He was the Chairman of the Reserve Forces Policy Board at the Department of Defense from 2009 to 2011. He served as Chairman of the Judicial and Prosecutorial Appointments Committee of the New Jersey State Bar Association (NJSBA) from 2011 to 2012.  Mr. Greenberg received the Secretary of Defense Medal for Outstanding Public Service in 2011. Mr. Greenberg received his B.A. from Johns Hopkins University and a J.D. from Rutgers University School of Law. 
 
The United States Court of Appeals for Veterans Claims was formed under Article I of the Constitution in 1988. The Court is part of the United States Department of Veteran Affairs and it provides judicial review of benefits determinations by the Board of Veterans Appeals. It has exclusive national jurisdiction to provide federal  judicial oversight and review of final decisions of the Board of Veterans' Appeals.   It was formerly named the United States Court for Veterans Appeals  but its name was changed by the Veterans Programs Enhancement Act on March 1, 1999 (Pub.L. No. 105-368). 
 
Although the Board of Veterans Appeals is  part of the United States Department of Veterans Affairs, the U.S. Court of Appeals for Veterans Claims is an independent federal court and it is not part of the Department of Department of Veterans Affairs. The U.S. Court of Appeals for Veterans Claims has exclusive jurisdiction to review decision of the Board of Veterans' Appeals and the power to affirm, modify, or reverse a decision of the Board of Veterans' Appeals or to remand the matter.
 
From the Civil War until 1988, veterans who were denied benefits had no independent judicial recourse for their claims. Veterans' Judicial Review Act of 1988 created the U.S. Court of Appeals for Veterans Claims on November 18, 1988. Before the establishment of this Court, the Veterans Administration, now called the United States Department of Veterans Affairs. For years veterans  urged Congress to pass a law for independent  judicial review of Veteran Administration decisions. The increase in the volume of veterans’ claims as a result of Vietnam veterans returning from fighting in the Vietnam War brought attention to the problems of veterans having difficulty obtaining benefits because there was no independent oversight in the adjudication process. 
 
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The website for the United States Court of Appeals for Veterans Claims details the Court’s history, as well as the need for this Court,  as follows: 
 
“From the U.S. Civil War up to 1988, a span of 125 years, there was no judicial recourse for veterans who were denied benefits. The Department of Veterans Affairs (DVA), formerly the Veterans Administration, was virtually the only administrative agency that operated free of judicial oversight. 
 
     Veterans whose claims for benefits were denied by the Veterans Administration were afforded no independent review of DVA decisions and were denied the right afforded to many other citizens to go to court and challenge similar agency decisions. The Board of Veterans' Appeals provided the final decision of what could be a long, arduous adjudication process for a veteran's claim.
 
     The status quo of no judicial review of veterans claims persisted until an influx of post-Vietnam claims in the 1970s and 80's directed the spotlight on an adjudication process that was in obvious need of reform. Individual veterans and advocacy groups increasingly pressed for some sort of judicial review of DVA agency decision-making. The House Committee on Veterans' Affairs consistently resisted efforts to alter the DVA's unique status and noted that the Veterans Administration stood in "splendid isolation" as the single federal administrative agency whose major functions were explicitly insulated from judicial review. 
 
     Veterans and veteran advocacy groups were feeling frustrated and powerless in their cause. After nearly three decades of debate, a veterans' court was finally created under Article I of the Constitution by the Veterans' Judicial Review Act on November 18, 1988. This Act eliminated the bar to judicial review and allowed lawyers to represent veterans, for a reasonable fee, after the claimant's case was initially decided by the Board of Veterans' Appeals (BVA). Once a claim has been decided by the BVA, veterans may hire lawyers and be represented in their appeal. Recent congressional legislation lifted the bar to paid legal representation while the claim is before the VA. 
 
     The Court is quite unique in that very few federal courts have been created since the ratification of the Constitution. For the sixth time in our nation's history, Congress established a court of national jurisdiction without geographical limits. The new veterans court was named the United States Court of Veterans Appeals. On March 1, 1999, the name was changed by the Veterans' Programs Enhancement Act of 1998 to what it is known today as the U.S. Court of Appeals for Veterans Claims (CAVC).”
 
The seven active judges on the Court are appointed by the President, and confirmed by the Senate to serve either thirteen or fifteen year appointments. The law that created the Court is in chapter 72 of title 38, United States Code.      
 
The Court defines its role as follows:
“The United States Court of Appeals for Veterans Claims is a national court of record, established under Article I of the Constitution of the United States. The Court has exclusive jurisdiction to provide judicial review of final decisions by the Board of Veterans' Appeals, an entity within the Department of Veterans Affairs. 
 
The Court provides veterans an impartial judicial forum for review of administrative decisions by the Board of Veterans' Appeals that are adverse to the veteran-appellant's claim of entitlement to benefits for service-connected disabilities, survivor benefits and other benefits such as education payments and waiver of indebtedness. In furtherance of its mission, the Court also seeks to help ensure that all veterans have equal access to the Court and to promote public trust and confidence in the Court.” 
 
The Court’s website states in part:
“The Court reviews certain BVA decisions. The Court is not part of the VA. It does not hold trials, receive new evidence, or hear witnesses. It reviews your BVA decision, the written record, and the briefs of the parties. You do not need to come to Washington, D.C. for your appeal. Remember: You must have a final decision from the BVA - not the RO - before you can appeal to this Court.”   
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Veterans, weary of waiting for benefits,  are hopeful there may be improvements in the slow rate of processing of their claims. Much attention in the media has been given to the backlog and quagmire of veterans’ claims.
 
The New York Times reported in an opinion article that, “There is a separate quagmire for veterans who appeal a rejected claim — the average time between the filing of an appeal and its resolution is nearly two and a half years. If a veteran fights a losing appeal in the Court of Appeals for Veterans Claims, that is another journey of months or years. The court might send a case back for more review, and more delay. Veterans’ advocates call that “the hamster wheel. Give the Department of Veterans Affairs some sympathy: in the last decade, its workload exploded. Veterans filed more than 1.3 million claims in 2011, double the number of 2001. The department says about 45 percent of recent veterans are seeking benefits, each with about 11 to 15 medical issues, vastly higher than the historical rate after World War II and Vietnam. Many Afghanistan and Iraq veterans are returning with severe injuries requiring elaborate and complicated care. The population of Vietnam-era veterans is older and sicker than ever. And the list of ailments for which the department is giving compensation — like heart disease, leukemia and Parkinson’s, from exposure to Agent Orange — is growing.” 
 
The New York Times also reported that the Department of Veterans Affairs is proposing new regulations to make it easier for veterans to receive treatment for illnesses linked to traumatic brain injury, including “Parkinsonism, unprovoked seizures, certain dementias, depression and hormone deficiency diseases related to the hypothalamus, pituitary or adrenal glands as eligible for the expanded benefits. The proposal, which must undergo a 60-day public comment period, could open the door to tens of thousands of veterans filing claims with the Veterans Benefits Administration.”
 
In a White House Press Release, President Barrack Obama said, “I am confident that Mr. Greenberg will greatly serve the American people in his new role and I look forward to working with him in the months and years to come.”
 
 
Newark, New Jersey Mayor Cory Booker recently spoke about veterans returning to the workforce and how this country needs  their “skills and leadership to build better companies, better organizations, stronger non-profits, municipal government. We need your services yet again.” He also spoke of our responsibility to those returning veterans, those who served at the highest level of service, should not have to comeback and face the worse level of our economy. “Those people who fought fro our freedom should not be shackled by unemployment”.
 
According to The Huffington Post, the unemployment rate for veterans returning from serving in Iraq or Afghanistan stood at 10.8 percent in December 2012, compared with the overall unemployment rate of 7.8 percent. 

 

Contact Hope A. Lang, Attorney at Law, today for a free consultation. 

 


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