Amicus Curiae Brief — Brown v. Gardner
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RFILED
\] JUL 8 1994
No. 93-1128 GFFIZE UF iHE Clean
In the Supreme Court of the United States
OCTOBER TERM, 1993
JESSE BROWN, SECRETARY OF VETERANS AFFAIRS,
Petitioner,
V.
FRED P. GARDNER
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Federal Circuit
BRIEF FOR AMICI CURIAE
PARALYZED VETERANS OF AMERICA
VETERANS OF FOREIGN WARS
AMERICAN VETERANS OF WWIL KOREA AND VIETNAM
BLINDED VETERANS ASSOCIATION
VIETNAM VETERANS OF AMERICA
IN SUPPORT OF RESPONDENT
PARALYZED VETERANS LAWRENCE B. HAGEL
OF AMERICA Deputy General Counsel
Richard F. Johnson, Paralyzed Veterans of America
President 801 Eighteenth Street, N.W.
Robert L. Nelson, Washington, D.C. 20006
General Counsel (202) 416-7637
801 Eighteenth Street, N.W.
Washington, D.C. 20006 Counsel for Amici Curiae
VETERANS OF FOREIGN WARS
George T. Estry, Chief of Appeals
200 Maryland Avenue, N.E.
Washington, D.C. 20002
AMERICAN VETERANS OF WWIL,
KOREA AND VIETNAM (AMVETS)
Donald M. Hearon, National Commander
4647 Forbes Boulevard
Lanham, Maryland 20706
BLINDED VETERANS ASSOCIATION
Irving R. M. Panzer, Esq., Legal Counsel
1814 N Street, N.W.
Washington, D.C. 20036
VIETNAM VETERANS OF AMERICA
James L. Brazee Jr., Esq., President
1224 M Street, N.W.
Washington, D.C. 20005
Se a
Balmar Legal Publishing Services, Washington, D.C., (202) 682-9800
TABLE OF CONTENTS
INTEREST OF AMICI AND SUMMARY
I os oa 6 a Mew oe 6 0 8 4
ar ie er a eae a
I THE LAWS PROVIDING BENEFITS
TO VETERANS OF THE ARMED
FORCES SHOULD BE INTERPRETED
IN A MANNER WHICH MOST BENEFITS
mo EO re a ee
A. Section 1151 Is Part Of A Legislative
Scheme To Provide Liberal Benefits
Earned Through Service To The
Country In The Armed Forces Of
The United States . Tea
B. The Provisions Of Such Remedial
Legislation Should Generally Be
Liberally Interpreted In Favor Of
I hd Wo dc pewe coe.
C. Legislation Designed To Benefit
Veterans Is Legislation Due A Liberal
Interpretation, Favoring Those Whom
It Was Designed To Benefit...
Il. CONDITIONING THE AWARD OF
VETERANS DISABILITY BENEFITS
ON THE CONCEPT OF FAULT IS
INCONSISTENT WITH THE GENERAL
STATUTORY SCHEME OF VETERANS
rte... 4 oe ue b 6 4-6 ve © «
A. Entitlement To Veterans Disability
Benefits Is Not Based Upon Concepts
Of Fault; Rather, It Is Predicated Upon
An Individual’s Status At The Time
A Disability IsIncurred ...........
The VA Itself Has Represented To
Congress That, Prior To 1988, It Did
Not Utilize Procedures Consistent With
The Traditional Legal Principles Of
Medical Malpractice To Adjudicate
Claims For Veterans Benefits ........
Ill. THE INTERPRETATION OF SECTION 1151
BY THE VAIS DUENODEFERENCE ....
A. Prior To 1988, This Court Recognized
c.
That The VA Was Due Deference In
Interpreting The Laws Relating To
Veterans Benefits ..............
After 1988 And The Passage Of
The Veterans’ Judicial Review Act,
The VA’s Interpretation Of The
Laws Relating To Veterans’ Benefits
Should No Longer Be Given
I Sei eel ere te ng sg
The VA’s Interpretation Of Section 1151
Is Due No Deference Because It Does
Not Deal With A Subject Committed To
The DiscretionOf The VA .........
1]
12
12
13
16
—_ —~E ewe «= - =
ill
IV. THE COURT SHOULD NOT CONCERN
ITSELF WITH CLAIMS BY THE VA
THAT A RULING IN FAVOR OF THE
VETERAN WILL HAVE DEVASTATING
FINANCIAL CONSEQUENCES FOR
We ww ea TO EMO Rew tc e
A. The Financial Consequences Of A
Decision Rightly Made Are Of No
Concern To This Court, And Allegations
Of Such Consequences Should Not Be
ee a oe Ow ke 8s
B. The VA’s Estimate Of The Financial
Consequences Of An Adverse Decision
In This Case Are Unreliable And Should
Py <¢seseeeuweus ss ei
SS "ag: Gia Sib Ba ee ee
17
17
18
22
iv
TABLE OF AUTHORITIES
Cases:
Boone v. Lightner, 319 U.S. 561 (1943) ......
Browder v. Derwinski, | Vet. App. 204 (1991)
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc. 467 U.S. 837 (1984) ......
Coffy v. Reynolds Steel Corp.,
GU IDS oc hc cece ees
Cosmopolitan Co. v. McAllister,
ES oon 6 a 6 00.6 @ 8°04
Cox v. Roth, 348 U.S. 207 (1955) .........
F.H.A. v. The Darlington, 358 U_S. 84 (1958) . . .
Fishgold v. Sullivan Drydock & Repair Corp.,
So Re ee
Isbrandtsen Co. v. Johnson,
el
Johnson v. Robison, 415 U.S. 361 (1974) .....
Laposky v. Brown, 4 Vet. App. 331 (1993)... . .
Miller v. United States, 294 U.S. 435 (1935)... .
Porter v. Aetna Casualty & Surety Co.,
ee
Potomac Electric Power Co. v. Director,
Office of Workers’ Compensation Programs,
U.S. Department of Labor, et al.,
BG
Regan v. Taxation with Representation of Wash.,
461 U.S. 540 citing other cases (1983) ... .
Traynor v. Turnage, 485 U.S.535 .........
United States v. Clark, 454 U.S. 555 (1982)... .
=
a
United States v. Oregon, 366 U.S. 643 (1961) .
Walters v. Nat. Ass'n. of Radiation Survivors,
GPU IS fw aici nw 6 6s 6 66 <0
Statutes and Regulations:
Department of Veterans Affairs Act,
Pub. L. 100-527, 552,10; 102 Stat. 2635 .. .
Veterans’ Judicial Review Act,
Pub. L. No. 100-687, 102 Stat. 4105
SA a ar ee ae
EE eg aa hy ea One
PE as 6.5 2 60's ene 6 0 8.8%
Dre's. 6 os 6c 6 oe 6 we es
ED do 6 6 4 88 wee
ee ae ee ee
are a ee eee ee
ek ee
Ps ns ss ose 6:0 ce 0 0 8 8
38 U.S.C. § 1151 (Supp.TV 1992) .........
ee Sg 6k bw oo 6-6 0.09 68
a a eer
38 USL. S11 Gaupp. TV 1992)... ..:.....
oe Pee rrr ae eee
38 U.S.C. §§ 1101-1163 (Supp. 1V 1992) .....
38 U.S.C. §§ 1110, 1131 (Supp. TV 1992)... ..
38 U.S.C. §§ 1301-1323 (Supp. TV 1992) .....
38 U.S.C. §§ 1501-1562 (Supp. TV 1992) .....
38 U.S.C. §§ 1701-1754 (Supp. TV 1992) .....
Page(s)
>
w
WN WN NY WwW DD CO
vi
38 U.S.C. §§ 1901-1988 (Supp. IV 1992) .. . .
38 U.S.C. §§ 2301-2308 (Supp. IV 1992) .... .
38 U.S.C. §§ 3001-3036, 4100-4110
SL e's 0 wg acd bo a-0 9 0
38 U.S.C. §§ 3701-3751 (Supp. IV 1992) .....
38 U.S.C. §§ 4301-4307 (Supp. TV 1992) ....
oe RG Sl eee er ae
ES 6b 5k ee i x oe ew ae
NEES oe © 6-0 6. 6, 4-0 000 eee
NS ss 6 6k 0 0 = 6 e ele
PL UTE 5-5-5 <6 +s 0 6.5 Ok So Oe
| eer ae ra er ae
RS ee eer
I hs oe 5 oe ek ew eee
Miscellaneous:
American Hospital Association,
Guide to Health Care Institutions (1993) . . .
Harvard Medical Practice Study
Patients, Doctors and Lawyers: Medical
Injury, Malpractice Litigation, and Patient
Compensation in New York (1990) ......
Harvard Medical Practice Study
A Measure of Malpractice: Medical
Injury, Malpractice Litigation, and Patient
Compensation (1993) .............
onrnrnrncncknrninn a WD BW
21
vil
Judicial Review Legislation:
Hearing on S. 11, The Proposed Veterans
Administration Adjudication Procedure
and Judicial Review Act, and S. 2292,
Veterans’ Judicial Review Act Before
the Comm. on Veterans’ Affairs of the
United States Senate, 100th Cong.,
ek so 6 8 e
Judicial Review of Veterans Affairs:
Hearing on H.R. 639, H.R. 5039, S. 11,
and S. 2292 Before the Comm. on Veterans’
Affairs of the United States House of
Representatives, 100th Cong. 2d Sess.
Se re ee a
H.R. Rep No. 963, 100th Cong., 2d Sess (1988),
reprinted in U.S. Code Cong. & Admin.
EE Ge re en ote yee. &
138 Cong. Rec. S. 4040
(daily ed., March 20,1992) ..........
Restatement (Second) of Torts
§§ 298, 299A (1964) ...... eee eee
Page(s)
11,13,14
14,17,18
No. 93-1128
In the Supreme Court of the United States
OCTOBER TERM, 1993
JESSE BROWN, SECRETARY OF VETERANS AFFAIRS,
Petitioner,
—_
V.
FRED P. GARDNER
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Federal Circuit
BRIEF FOR AMICI CURIAE
PARALYZED VETERANS OF AMERICA
VETERANS OF FOREIGN WARS
AMERICAN VETERANS OF WWIL, KOREA AND VIETNAM
BLINDED VETERANS ASSOCIATION
VIETNAM VETERANS OF AMERICA
I N SUPPORT OF RESPONDENT
INTEREST OF AMICI AND SUMMARY OF ARGUMENT
The following organizations join in this brief as amici
curiae in support of the respondent veteran, Fred P. Gardner:
The Paralyzed Veterans of America; The Veterans of Foreign
Wars; AMVETS (American Veterans of World War II, Korea
and Vietnam); The Blinded Veterans Association; and, the
Vietnam Veterans of America.! Each organization is composed
' The American Legion has acknowledged the importance of this case
but is prohibited by internal regulations from joining any fellow service
organization in litigation. This policy extends to Briefs Amicus Curiae.
2
of veterans of the Armed Forces of the United States some of
whom, but for the position taken by the Department of Veterans
Affairs*, would be eligible for the same benefits claimed by Mr.
Gardner. As such, each organization supports Mr. Gardner in
obtaining affirmance of the decision of the Court of Appeals.
More particularly the organizations, listed in the order of
joining the brief, and their interests are described as follows:
The Paralyzed Veterans of America (“PVA”) is composed
of over 16,000 veterans who served honorably in the armed
forces of the United States or its allies and who have a spinal
cord injury or disease. The Paralyzed Veterans of America is
chartered by the Congress of the United States as a national
association for the benefit of those veterans who have suffered
injuries or disease of the spinal cord. See 36 U.S.C. § 1153
(1988). PVA has 46 chapters or subchapters in the United States
and the Commonwealth of Puerto Rico.
The Veterans of Foreign Wars (“VFW’) is composed of
2.2 million veterans of the armed forces of the United States who
served honorably overseas in time of war and in several peace-
time campaigns and a 750,000 member Ladies Auxiliary.
Founded in 1899, the organization is the oldest of the major
veterans service Organizations and received a congressional
charter in 1936. See 36 U.S.C. § 111 (1988) et seg. Among the
purposes for which it was chartered are to assist veterans, their
widows and orphans. 36 U.S.C. § 113 (1988). The VFW has
over 11,000 posts located in all 50 states and a dozen foreign
countries and territories. Throughout its 94 years, the VFW has
been active in every effort to secure appropriate rights and
privileges for America’s veterans.
? In 1989, the Veterans Administration was raised to cabinet level and
renamed the Department of Veterans Affairs. See the Department of Veter-
ans Affairs Act, Pub. L. 100-527, 552,10; 102 Stat. 2635. In this brief the
Department will be referred to by its more commonly known acronym, the
mg
3
The American Veterans of World War II, Korea and Viet-
nam (AMVETS) is a congressionally chartered organization of
veterans and their dependents. See 36 U.S.C. § 67 (1988). As
a family organization, AMVETS 200,000 members are joined
in their endeavors with the members of AMVETS Auxiliary,
Sons of AMVETS and Junior AMVETS who together have
served the needs of the veteran for 50 years.
The 8,000 member Blinded Veterans Association (the “As-
sociation”) was founded in 1945 by blinded veterans of World
War II to provide for the welfare of blinded veterans and to
enable these veterans to provide mutual aid and assistance to one
another. The Association is chartered by the Congress of the
United States. See 36 U.S.C. § 851 (1988). Services rendered
by the Association include counseling to blinded veterans and
their families and assistance in obtaining benefits from the
Department of Veterans Affairs.
The Vietnam Veterans of America (“VVA’’) is a congres-
sionally chartered organization with over 40,000 members who
are veterans of the war in Vietnam. See 36 U.S.C. § 3801
(1988). These members are located in over 300 chapters and
some 40 councils throughout the United States. One of the
purposes of the organization is to assist disabled Vietnam-era
veterans and other veterans in need of assistance in obtaining
veterans benefits.
By their consolidated appearance as amici, these organiza-
tions wish to underscore the importance of a much broader and
central issue in this case, the authority of the courts to oversee
the adjudication of claims for veterans benefits, the interpreta-
tion by the VA of statutes passed by Congress which grant
entidement to those benefits, and the degree of deference due
any such interpretation by the VA.
Further, this case presents the Court with its first opportu-
nity to review the legality of the VA’s pre-judicial review
interpretation of veterans’ benefit laws in light of the Veterans’
4
Judicial Review Act*. If this Court were to decide that Chev-
ron-type* deference is due VA regulations promulgated before
judicial review, the impact of this historic legislation will be
severely limited.
The Solicitor General would have this Court reverse the
decisions of both the U.S. Court of Veterans Appeals and the
U.S. Court of Appeals for the Federal Circuit both which have
found invalid 38 C.F.R. § 3.358(c)(3), the VA’s regulatory
interpretation of 38 U.S.C. § 1151 (Supp. [V 1992). In large
measure the Solicitor supports his position by claiming that the
decisions of the lower courts are inconsistent with the commonly
accepted fault-based principles of law relating to medical mal-
practice, which, according to him, provided the background for
Congress’ enactment of Section 1151 and is consistent with the
accepted principles of recovery for adverse medical outcomes.
(See e.g. Pet. Brief at 17, 19, and 20).
The Solicitor’s reliance on the common law of medical
malpractice is misplaced for at least two reasons. First, the
Statutory scheme in which Section 1151 must be viewed is not
a system to compensate the general class of persons suffering
misfortune due to medical treatment — it is a statutory scheme
designed to provide liberal benefits to veterans of the armed
forces of the United States who have accepted the hardships of
military service and have served their country in both war and
peace. Second, prior to November 18, 1988, there were almost
no judicial decisions regarding the validity of the VA’s regula-
tions which interpreted the laws relating to veterans benefits.
Indeed, the need for such supervision of the VA’s administration
of veterans’ benefits legislation, by an independent judicial
body, was recognized by Congress when it responded to com-
> Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105
(1989).
* Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984)
5
plaints of the VA’s abuse of its regulatory authority by repealing
the non-review portions of 38 U.S.C. § 211(a) and created the
U.S. Court of Veterans Appeals.
ARGUMENT
I. THE LAWS PROVIDING BENEFITS TO
VETERANS OF THE ARMED FORCES SHOULD
BE INTERPRETED IN A MANNER WHICH MOST
BENEFITS THE VETERAN
A. Section 1151 Is Part Of A Legislative Scheme To
Provide Liberal Benefits Earned Through Service To
The Country In The Armed Forces Of The United
States
The statute at issue must not be viewed in isolation. It is
an integral part of a scheme established by Congress to recog-
nize, through a comprehensive system of liberal benefits, the
substantial contributions made by those who have served the
nation honorably in its armed forces. This statutory scheme
contains a full range of benefits which, among others, includes:
disability compensation for service members>; dependency and
indemnity compensation for the surviving spouse, children and
parents of veterans®,; pensions for veterans and surviving
spouses’; free or reduced fee hospital, nursing home, domicili-
ary and other medical care*; life insurance®; guaranteed reem-
ployment upon conclusion of military service!®; education, job
training, counseling and placement benefits for both veterans
38 U.S.C. §§ 1101-1163 (Supp. IV 1992).
® 38 U.S.C. §§ 1301-1323 (Supp. IV 1992).
38 U.S.C. §§ 1501-1562 (Supp. IV 1992).
* 38 U.S.C. §§ 1701-1754 (Supp. IV 1992).
° 38 U.S.C. §§ 1901-1988 (Supp. IV 1992).
1° 38 U.S.C. §§ 4301-4307 (Supp. IV 1992).
6
and their surviving spouses and children!'!; loans for housing
and small business!2; and burial benefits!>.
Indeed this Court has recognized that these wide-ranging
benefits comprise one scheme of legislation by which Congress
has intended to benefit veterans. United States v. Oregon, 366
U.S. 643, 647 (1961) (interpreting a law which provided that the
property of veterans who die in a state veterans home, intestate
and without heirs, escheats to the United States rather than the
State. “This natural construction we give to [this section of the
law] makes it fit well into the pattern of legislation dealing with
this subject. . . . The solicitude of Congress for veterans is of
long standing.’’)
B. The Provisions Of Such Remedial Legislation Should
Generally Be Liberally Interpreted In Favor Of The
Beneficiary
When interpreting legislation that is remedial in nature, this
Court has always given great weight to effectuating the benefi-
cent purposes of the legislation even when faced with counter-
vailing policies of the common law. See, e.g. Potomac Electric
Power Co. v. Director, Office of Workers’ Compensation Pro-
grams, U.S. Department of Labor, 449 U.S. 268, 281, 283
(1980) (The Longshoremen’s and Harbor Workers’ Compensa-
tion Act!4 , like other workmen’s compensation legislation, is
a remedial statute intended to provide employees with recovery
without fault, thus precluding the various common-law defenses
frequently resulting in denial of recovery. The [clear] language
of such a statute cannot be ignored or rewritten by the Court,
even if it leads to incongruous or seemingly unjust results. );
'l 38 U.S.C. §§ 3001-3036, 4100-4110 (Supp. IV 1992).
'2 38 U.S.C. §§ 3701-3751 (Supp. IV 1992).
1 38 U.S.C. §§ 2301-2308 (Supp. IV 1992).
‘4 44 Stat. (part 2) 1424, as amended, 33 U.S.C. §§ 901-950 (1976 ed.
\\and Supp. Ill).
7
Cox v. Roth, 348 U.S. 207, 209 (1955) (“The extreme harshness
of the old common-law rule abating actions on the death of the
tortfeasor flies in the face of the expressed congressional pur-
pose to provide for ‘the welfare of seamen.’ The Jones Act!5
‘As welfare legislation . . . is entitled to a liberal construction to
accomplish its beneficent purposes.’” Citing Cosmopolitan Co.
v. McAllister, 337 U.S. 783, 790 (1949)); Isbrandtsen Co. v.
Johnson, 343 U.S. 779, 782 (1952) (concerning the rights of
seamen under Shipping Commissioners Act of 1872,!° “No rule
of construction precludes giving a natural meaning to legislation
like this that obviously is of a remedial, beneficial and amenda-
tory character. It should be interpreted to effect its purpose.”’);
Cosmopolitan Co. v. McAllister, 337 U.S. at 790 (interpreting
the Jones Act and the War Shipping Administration (Clarifica-
tion) Act!” “In considering similar [welfare] legislation in other
fields, we have concluded that Congress intended that the pur-
poses of such enactments should not be restricted by common-
law concepts of control so as to bar from welfare legislation as
independent contractors persons who were as a matter of eco-
nomic reality a part of the processes and dependent upon the
businesses to which they rendered service.’’)
C. Legislation Designed To Benefit Veterans Is
Legislation Due A Liberal Interpretation, Favoring
Those Whom It Was Designed To Benefit
This Court has a consistent history of liberally interpreting
legislauon affecting veterans so as to provide the greatest benefit
possible under the law to veterans. See, e.g. Coffy v. Reynolds
Steel Corp., 447 U.S. 191, 196 (1980) (regarding the Vietnam
Era Veterans’ Readjustment Act of 1974, § 38 U.S.C. 2021 et
seq. “The statute is to be liberally construed for the benefit of
'S Cited as 41 Stat. 1007, 46 U.S.C. § 688.
'© Cited as 30 Stat. 756, 38 Stat. 1164, 46 U.S.C. § 596.
' Cited as 41 Stat. 1007, 46 U.S.C. § 608 and 57 Stat. 45, 50 USC
App. 1291.
8
the returning veteran.”); United States v. Oregon, 366 U.S. at
647 (Interpreting portions of Title 38) providing the property of
veterans who die intestate and without heirs in a state veterans
home becomes property of the United States to be used for the
General Post fund to benefit other veterans and not of the state
under its laws of intestate succession.); Porter v. Aetna Casualty
& Surety Co., 370 U.S. 159, 162 (1962) (“Since legislation of
this type [exempting veterans benefits from attachment] should
be liberally construed [citation omitted] to protect funds granted
by Congress for the maintenance and support of the beneficiaries
thereof [citation omitted] we feel that deposits such as are
involved here should remain inviolate.”); F.H.A. v. The Dar-
lington, 358 U.S. 84, 86 (1958) (“We do not think the Act!® gave
mortgagors the nght to rent to transients. There is no express
provision one way or the other; but the limitation seems fairly
implied. We deal with legislation passed to aid veterans and
their families, not with a law to promote the hotel or motel
business”.) Fishgold v. Sullivan Drydock & Repair Corp., 328
U.S. 275, 285 (1946) (regarding the Selective Training and
Service Act of 1940!9, “This legislation is to be liberally con-
strued for the benefit of those who left private life to serve their
country.”); Boone v. Lightner, 319 U.S. 561, 575 (1943) (“Sol-
diers & Sailor's Civil Relief Act*° is always to be liberally
construed to protect those who have been obliged to drop their
own affairs to take up burdens of the nation.”).
For these overriding reasons, the Court should begin its
analysis, not with the narrow focus on Section 1151, but with
the broader view that this provision is but one piece of a broad
scheme of legislation authored by the elected representatives of
'® The National Housing Act (cited as 56 Stat. 303, 12 U.S.C. § 1743 as
amended by § 10 of the Veterans’ Emergency Housing Act of 1946, 60 Stat.
207, 214).
'? Cited as 54 Stat. 885, 50 U.S.C. App. § 301.
20 Cited as 54 Stat. 1178, 1181, 50 U.S.C. App. § 521.
9
a grateful nation, designed to provide liberal and well deserved
benefits to those who have borne the burden of military service.
When viewed in this context, the Court should, consistent with
its precedent interpreting other legislation benefiting veterans in
particular and legislation effectuating similar remedial purposes
in general, give Section 1151 a reading which most benefits its
intended beneficiaries, those veterans who suffer additional
disability while undergoing medical treatment provided by the
VA.
Il. CONDITIONING THE AWARD OF VETERANS
DISABILITY BENEFITS ON THE CONCEPT OF
FAULT IS INCONSISTENT WITH THE GENERAL
STATUTORY SCHEME OF VETERANS BENEFITS
A. Entitlement To Veterans Disability Benefits Is Not
Based Upon Concepts Of Fault; Rather, It Is
Predicated Upon An Individual’s Status At The Time
A Disability Is Incurred
Apart from the general rule that Section 1151 should be
interpreted liberally to benefit the veteran, the Court must inter-
pret this statute in a manner consistent with the statutory scheme
of determining entitiement to veterans’ disability benefits.
The Solicitor would have the Court adopt the common law
of negligence as its construct for analysis of this case. This
would be unwise. The statutory scheme under which veterans
qualify for disability benefits bears no relationship to the tradi-
tional concept of the common law of negligence which is based
upon the determination of whether or not the alleged tortfeasor
can be found at fault because he or she violated a legal standard
of care. See Restatement (Second) of Torts §§ 298, 299A
(1964). Section 1151 is not a statute designed to apportion fault
for medical miscues. It, rather, defines one of the many benefits
for which veterans of the armed forces may qualify.
10
Consequently, more properly, the Court should analyze
this case under the backdrop of the basic entitlement to scheme
of disability benefits administered by the VA. Such entitlement
has no fault element. Entitlement is, rather, temporal in nature,
predicated solely upon a finding that a veteran has a disability
and that disability resulted from an injury or disease that either
first occurred during a qualifying period of military service or
was aggravated during such service. 38 U.S.C. §§ 1110, 1131
(Supp. [V 1992). The law does not require a causal link between
the injury or disease and the veteran’s military duties, but only
that the injury or disease occurred during a period of qualifying
service. Walters v. Nat. Ass'n. of Radiation Survivors, 473 U.S.
305, 307 (1985). See also Browder v. Derwinski, | Vet. App.
204, 207 (1991): Laposky v. Brown, 4 Vet. App. 331, 334
(1993).
It is upon this basic foundation that the law of VA disability
benefit entitlement is built. In effect, Congress has recognized
what so many Americans believe and this Court has approved,
that veterans have been obligated to drop their own affairs and
take up the burden of the nation, subjecting themselves to the
mental and physical hazards as well as the economic and family
detriments which are peculiar to military service and which do
not exist in normal civil life. As a result, our country has a
long-standing policy of compensating veterans for their past
contributions by providing them with numerous advantages.
This Court has found this policy to be legitimate. See Regan v.
Taxation with Representation of Wash., 461 U.S. 540, 551
(1983), citing other cases.
Consequently, the decisions below, which held that the
VA's infusion of the element of fault into its adjudication of
claims filed under Section 1151 violates the law, are entirely
consistent with the statutory scheme enacted by Congress to
compensate veterans for their many past contributions.
1]
B. The VA Itself Has Represented To Congress That,
Prior To 1988, It Did Not Utilize Procedu: es
Consistent With The Traditional Legal Principles Of
Medical Malpractice To Adjudicate Claims For
Veterans Benefits
In describing the VA adjudication system before the Senate
Committee on Veterans’ Affairs in 1988, the VA General Coun-
sel noted the liberal due process protections provided to the
veteran in the adjudication of benefit claims. The General
Counsel cited the availability of multiple administrative re-
views, agency assistance in obtaining evidence, advice given by
the agency regarding the laws and regulations pertinent to the
veteran’s Claim, and oral hearings on demand as examples of the
liberal treatment given to the veteran seeking benefits. Judicial
Review Legislation: Hearing Before the Senate Comm. On
Veterans’ Affairs On S. 11, the Proposed Veterans’ Administra-
tion Adjudication Procedure and Judicial Review Act, and S.
2292, Veterans’ Judicial Review Act, S. Hrg. No. 938, 100th
Congr., 2d Sess. 492 (1988) (statement of Donald L. Ivers,
General Counsel, Veterans Administration).
Moreover, the General Counsel specifically denied the
VA's use of such traditional hallmarks of malpractice adjudica-
tion as the consideration of evidence outside the VA file, con-
sideration of consultative opinions or scientific treatises or
medical journal articles bearing to the issue, and assessments of
credibility of persons giving evidence to the VA. /d. at 494.
In summary, the VA General Counsel stated, “We are
unaware of any administrative process operated by any other
Federal agency that is more pro-claimant, simpler to use, or
more equitable” and “the present system is informal and assis-
tive. It works for veterans, it works with veterans, and is
monitored by veterans. So uniquely beneficent a system should
not be jeopardized for the philosophical end of guaranteeing a
few unsuccessful claimants the opportunity of having their
12
claims again considered — and probably denied — in a court of
law.” Id. at 493 and 502.
As the VA General Counsel himself testified, the statutory
scheme in which Section 1151 arises is one designed to provide
every assistance to a veteran seeking to establish his or her
entitement to a benefit earned by virtue of service to their country,
and is not one designed to place upon the veteran the difficult
burden of establishing the presence of negligence or other fault.
Ill. THE INTERPRETATION OF SECTION 1151 BY
THE VA IS DUE NO DEFERENCE
A. Prior To 1988, This Court Recognized That The VA
Was Due Deference In Interpreting The Laws
Relating To Veterans Benefits
Before 1988, Congress (and the Courts) were content to
permit the VA to provide viriually unreviewable, and thus
supremely authoritative, interpretations of the laws governing
benefits for veterans. Prior to that year, 38 U.S.C. § 211(a)
prohibited judicial review of matters relating to veterans bene-
fits.2! The VA asserted and the Court recognized two primary
reasons for such preclusion:
?! Prior to November 18, 1988, 38 U.S.C. § 21 1(a) read in pertinent part
§ 211. Decisions by Administrator, opinions of Attorney General
(a) (1) The Administrator shall decide all questions of law and fact
necessary to a decision by the Administrator under a law that affects
the provision of benefits by the Administrator to veterans or the
dependents or survivors of veterans. Subject to paragraph (2) of this
subsection, the decision of the Administrator as to any such question
shall be final and conclusive and may not be reviewed by any other
official or by any court, whether by an action in the nature of
mandamus or otherwise.
(2) The second sentence of paragraph (1) of this subsection does
not apply to —
Section 211 was repealed by P.L. 102-83, § 2(a), 105 Stat. 378 but has been
recast as 38 U.S.C. § 511 (Supp. [V 1992).
wat.
13
Court acknowledges VA's assertion of two primary
purposes of the no-review clause in 38 U.S.C. § 21 1(a)
to be: ““(1) to insure that veterans’ benefits claims will
not burden the courts and the Veterans’ Administra-
tion with expensive and time-consuming litigation,
and (2) to insure that the technical and complex deter-
minations and applications of the Veterans’ Admini-
stration policy connected with veterans’ benefits
decisions will be adequately and uniformly made.
Johnson v. Robison, 415 U.S. 361, 370 (1974).
B. After 1988 And The Passage Of The Veterans’
Judicial Review Act, The VA's Interpretation Of The
Laws Relating To Veterans’ Benefits Should No
Longer Be Given Deference
On November 18, 1988, the Veterans’ Judicial Review
Act? (hereinafter “VJRA”) became law, eliminating the no-re-
view provisions of 38 U.S.C. § 211(a) regarding the VA's
decisions on veterans benefits.2> The new law also specifically
made the VA subject to the rulemaking provisions of the Ad-
ministrative Procedure Act. This action by Congress ended
some 170 years of total independence by the VA (and its
predecessor agencies) in interpreting the laws providing benefits
to veterans and the procedures and interpretations used to adju-
dicate claims for those benefits. H.R. Rep. No. 963, 100th
Cong., 2d Sess. (1988), reprinted in U.S. Code Cong. & Admin.
News 5782. Such action did not come without substantial
investigation and debate.*4
22 Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105
(1989).
23 The VJRA added to the exclusions contained in subsection (2) deci-
sions regarding the award of disability and other benefits.
4 See generally Judicial Review Legislation: Hearing on S. 11, The
Proposed Veterans Administration Adjudication Procedure and Judicial
Review Act, and S. 2292, Veterans’ Judicial Review Act Before the Comm.
on Veterans Affairs of the United States Senate, 100th Cong., 2d Sess.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.