Agency Hopes to Avoid Sanctions through Plan Drafted In Consultation with NOVA

Washington, D.C .– On May 20, 2013, VA responded to an order from the U.S. Court of Appeals for the Federal Circuit with a plan to remedy any harm caused to veterans by applying an invalid rule in hearings before the Board of Veterans’ Appeals (BVA).  Working with the National Organization of Veterans’ Advocates, Inc. (NOVA), the petitioner in the case, VA hopes its response to the Court will be enough to avoid sanctions for its misconduct throughout the case.

In its Order, issued on March 21, 2013, the Federal Circuit confirmed that VA acted unlawfully in 2011 when it promulgated a regulation that eliminated certain procedural and appellate rights for veterans appearing before the BVA.  The Court also rebuked VA for failing to live up to its promise to stop enforcing its unlawful rule on March 5, 2012.  In an extraordinary move, the Court ordered VA to show cause why sanctions should not be imposed for the failure to keep its word.  The agency was given 60 days to do so.

In accordance with the Order, VA consulted with NOVA and drafted a plan for identifying and rectifying any harm suffered by any veteran—at any time—as a result of the unlawful rule.

VA’s plan commits VA to provide individual notices, within 90 days, to every veteran who had a case that may have been affected by the Board’s unlawful application of the 2011 Rule.  VA will grant such veterans the right to a new Board decision in each case, in addition to the right to participate in a new hearing and/or to submit additional evidence in support of their claim for benefits.  VA has also agreed to support a remand of any case pending in the Veterans Court that involves the potential application of the unlawful rule.  In addition, VA will conduct quarterly reviews to ensure that the Board does not apply the unlawful 2011 Rule in future cases.

VA’s plan was approved and signed by Will A. Gunn, VA’s General Counsel, and Steven L. Keller, Acting Chairman of the Board of Veterans Appeals.  VA’s Office of General Counsel and the Board will jointly assume responsibility for implementing the plan.

While the Court’s March 2013 Order made clear that the Court was considering imposing sanctions, VA maintains that its plan renders sanctions unnecessary.  In its response to the Court, VA states that it “never intended to mislead the Court or NOVA, nor did it intend to prejudice any veteran’s claims,” adding that “VA also never intended to evade responsibility for remedying any harm resulting from application of the 2011 Rule.”  It will be ultimately up to the Court to decide whether sanctions are appropriate.

NOVA has indicated that it supports VA’s proposed plan.  As NOVA’s counsel, Roman Martinez of Latham & Watkins LLP, explained: “NOVA is satisfied that VA’s plan sets out a reasonable path to remedying the harms that its unlawful rule has caused to veterans.  We look forward to working with VA to ensure that the plan is implemented and that any veteran who suffered harm under VA’s unlawful rule obtains relief.”

About NOVA

The National Organization of Veterans’ Advocates is a not for profit educational membership organization incorporated in the District of Columbia in 1993. NOVA is a national organization of attorneys and other qualified members who act as advocates for disabled veterans. Our goal is to provide excellent representation before the U.S. Court of Appeals for Veterans’ Claims, the Board of Veterans’ Appeals, and the Department of Veterans Affairs, to veterans who have disability claims against the government resulting from their service as members of the armed forces.  Offices are at 1425 K St NW, Suite 350, Washington, DC 20005.  Phone: (202) 587- 5708, Fax: (202) 587- 5600, Email: ccuddy@vetadvocates.org.

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