Firm Secures Pro Bono Victory for Veterans

Latham recently scored an important victory for veterans in the Federal Circuit on behalf of the National Organization of Veterans’ Advocates and Paralyzed Veterans of America. Latham authored a petition for review and briefing on behalf of NOVA and PVA, challenging a series of regulations promulgated by the Department of Veterans’ Affairs in connection with the Veterans’ Appeals Improvement and Modernization Act (AMA). The decision makes it easier for veterans to pursue their claims for benefits and receive the benefits to which they are entitled.

Prior to enactment of the AMA, the claims benefits system was notoriously cumbersome, confusing, and long, taking years to resolve veterans’ claims and resulting in significant delays before veterans could receive the benefits to which they are entitled. Unlike many other administrative agency processes, the claims benefits system is intended to be pro-veteran, rather than adversarial. The old claims system was not serving this purpose, and the AMA was enacted in order to streamline the benefit appeals process in order to better serve veterans. VA promulgated a series of regulations to implement this new process in February 2019. While the changes wrought by the AMA and VA’s implementing regulations are generally beneficial to veterans, several of the promulgated regulations made it more difficult for veterans to pursue appeals of adverse decisions or obtain benefits on the basis of new factual developments. 

Latham filed a petition for review on behalf of NOVA challenging several of these regulations. PVA subsequently sought leave to intervene on NOVA’s behalf and signed on to the opening brief. While the NOVA/PVA case was pending, the Federal Circuit issued orders in a pending en banc case also involving veterans issues (handled by a Latham team led by Roman Martinez), indicating that it was contemplating increasing the showing that veterans groups needed to make to establish standing to challenge VA regulations. Shortly before argument in the NOVA/PVA case, the Federal Circuit invited both petitioners to submit declarations and other evidence in support of their standing to challenge the specific regulations identified. Latham worked with NOVA and PVA to attempt to identify declarants who could support the organizations’ standing to challenge the identified regulations. Oral argument was conducted that same month. Michael Bern argued on behalf of NOVA and PVA.

A long wait for the decision ensued, which was finally issued on July 30, 2021. With respect to the four challenges Latham brought, the court concluded that PVA had associational standing to challenge two of the four regulations challenged, namely: (1) 38 CFR 3.2500(b)’s prohibition on filing a supplemental claim while the initial claim for benefits is on appeal in federal court; (2) 38 CFR 3.155(b)’s prohibition on use of the intent-to-file (ITF) mechanism for supplemental claims. In effect, the challenged regulations made it more difficult for veterans to appeal adverse VA decisions to federal court and to bring supplemental claims on the basis of new evidence pertaining to a veteran’s disability.

With respect to both regulations, the Federal Circuit agreed with Latham’s arguments on the merits and held both regulations to be invalid. As to the first, the court concluded that 3.2500(b)’s prohibition on filing a supplemental claim while an appeal is pending in federal court contradicts the plain and ordinary meaning of Section 5104C of the AMA. In particular, the court agreed that Section 5104C(a)(2)(B) protects a claimant’s ability to file a supplemental claim following an unsatisfactory Board of Veterans Appeals decision, whether or not the decision is appealed to the Court of Appeals for Veterans Claims. As such, the court concluded that “§ 5104C, read in its entirety, makes clear that a claimant whose initial claim is on appeal before a federal court does not have to wait until the completion of that appeal to file a supplemental claim.” As to the second regulation, the Court agreed with NOVA and PVA that 3.155(b)’s prohibition on the use of ITF for supplemental claims is arbitrary and capricious, noting among other things that VA had not offered any reason for interpreting substantively identical language in other provisions inconsistently.  

The decision protects veterans’ rights to appeal adverse VA decisions to federal court and speeds veterans’ ability to obtain benefits to which they are entitled on the basis of new evidence or worsening disabilities. 

The team was led by partner Michael Bern, with associate Genevieve Hoffman and former Latham associates Ben Snyder and Barrett Tenbarge. The NOVA/PVA team coordinated closely with the team working on the Federal Circuit en banc case: partner Roman Martinez and associates Shannon Grammel and Blake Stafford. Partner Melissa Sherry and associates Samir Deger-Sen, Eric Konopka, Allison Herzog, and Maggie Upshaw also assisted with the moot-courts, and appellate paralegals Olga Baeza and Rachel Jaffe oversaw the filings in this case, including the last-minute supplemental filings on standing.