Academic journal article The University of Memphis Law Review

The Credibility Trap: Notes on a VA Evidentiary Standard

Academic journal article The University of Memphis Law Review

The Credibility Trap: Notes on a VA Evidentiary Standard

Article excerpt

I. Introduction................. 887

II. VA Service-Connected Disability Compensation Program................. 892

III. VA Assessment of Lay Evidence.................894

IV. VA Credibility Determinations.................898

V. A Case Example.................904

VI. The Credibility Trap in Action.................909

VII. Remedies.................912

VIII. Conclusion.................914

I. Introduction

The system we currently use to deliver disability compensation to injured veterans is deeply flawed. This system-the service-connected disability compensation program administered today by the U.S. Department of Veterans Affairs ("VA")-was de-/ signed and built for a different era.1 But the system's original framework persists, with enormous negative consequences.

VA's system was originally designed to consider average loss of earning capacity based on disability within the context of a mostly agrarian and industrial economy; it was not designed for today's service economy and diversified labor market.2 VA's system was originally designed to consider the severity of individual disabilities based on uniform and precise measurement in percentage increments; it was not designed to take into account the enormous expenditure of time that such determinations would require when the number and complexity of disability claims multiplies, as they have in recent decades.3 VA's system was originally designed to consider a relatively narrow range of common disabilities; it was not designed to consider the multifaceted, invisible wounds of war and environmental toxins that are the hallmarks of recent conflicts.4 VA's system was originally designed to consider and decide disability claims that were completely insulated from judicial review; it was not designed to decide claims subject to federal court review and the growing body of court-made law that exists today.5 VA's nearly century-old framework has performed precisely as one would expect any other antique to perform when confronted by the new and more complex demands of a changing world-poorly.6

Today, a range of challenges besets the service-connected disability compensation system: claims backlogs, appeals backlogs, remand backlogs, layer upon layer of suffocating complexity, outmoded technology, and poor customer service.7 Hoping that VA's current system framework will effectively fulfill the program's fundamental goal of accurately and efficiently compensating veterans for service-connected injuries8-not just with respect to today's veterans, but with respect to succeeding generations of veterans too-is a risky proposition.

To be sure, there have been some modest improvements to the system in the last couple of years: the claims backlog has shrunk; modem technology is finally, if haltingly, being integrated into the program; and new initiatives may be increasing efficiency in some respects.9 But these improvements reflect changes at the margins. At present, nearly everyone agrees that the program needs a meaningful overhaul to reflect modem demands, modem systems management, and modem science.10 What remains uncertain and deeply contested is what precisely that overhaul should look like. Proposals run the gamut.* 11 What is more, the politics of veterans benefits suggests that substantial change will be controversial, no matter how well intentioned the various actors and institutions whose voices should and do count.12

As important as it is for veterans' advocates to consider these larger questions of systemic reform and to participate in debates about large-scale change, much work remains to be done to ensure that veterans with new and pending claims receive justice today. Thus, while the larger debate continues to unfold, it continues to be useful to dissect individual areas of veterans benefits law in order to highlight more precisely the flaws in VA's existing framework for adjudicating disability claims. …

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