Every day, American citizens see vehicles on the roadways plastered with "Support Our Troops" yellow ribbon car magnets and hear about the brave men and women in our armed services that are overseas serving the country. But are American troops supported when they return home from battle? Thousands of United States servicemen who have fought the war in Iraq and Afghanistan have developed a disorder called post traumatic stress disorder [hereinafter PTSD],1 many of whom are not getting the help they so desperately need. This article will analyze the role of veterans law judges in the disability compensation procedures within the United States Department of Veterans Affairs under procedural due process for veterans who are suffering from PTSD, with the test laid out in the Supreme Court decision of Matthews v. Eldridge.2
PTSD is a disorder where an individual develops "characteristic symptoms" triggered by involvement with a severely traumatic event that may have threatened one’s life or caused serious injury.3 Although PTSD can be activated by many different types of events, it was first brought to national attention when war veterans returned home from the battlefield, particularly Vietnam War veterans.4 People who suffer from PTSD seem to be apathetic, do not enjoy the activities they used to, are irritable, and become more aggressive and violent.5 PTSD often coexists with depression and substance abuse.6
PTSD and war veterans are especially related. A recent 2008 RAND study shows that since October of 2001, 1.6 million American troops have been deployed to fight the War on Terror in Iraq and Afghanistan and that most have been subjected to long periods of combat stress and many unforgettable traumatic events.7 The study found that 300,000 - almost twenty percent of all of those deployed, or one out of five - suffer from PTSD or major depression.8 Furthermore, the study found half of all who suffer from PTSD or major depression do not seek help because they are scared that such a diagnosis could harm their career.9 But out of all of the veterans who sought treatment, only half of them actually receive it—and usually, the treatment received is considered to be "minimally adequate" by researchers.10
The United States Department of Veterans Affairs [hereinafter VA] carries out many responsibilities—it provides pensions, healthcare, vocational rehabilitation and employment, compensation to dependants and survivors, and burial benefits for veterans.11 Included in this list is the VA’s responsibility for providing compensation for veterans who have a service-connected disability.12 The VA follows a grading system for how it determines the amount of compensation a veteran receives.13 The grading system is based on the level of diminished earning capacity from a civil occupation caused by the injury suffered.14 There are ten grades of disability available, such as ten percent, twenty percent, through ninety percent and one hundred percent.15 A zero percent is also possible.16
However, there is a specific formula that the VA’s rating boards must follow in assigning mental disability ratings for mental disorders such as PTSD.17 Regardless of the particular mental disorder that a veteran is diagnosed with, the VA analyzes all mental disorders using this same set of guidelines.18 The VA also has a fixed amount of money associated with each rating group.19 For example, someone who is given a fifty percent rating will get $728 a month in disability pay.20 If veterans disagree with the rating they are given from the rating board, they can appeal, but the process can be lengthy.21
In order to determine the constitutionality of the above mentioned procedures under the due process clause, the Supreme Court developed a procedural due process test in the landmark case of Matthews v. Eldridge22 that it has since relied on to decide related claims.23 Eldridge was a man who challenged the constitutionality of the procedures used when the disability benefits he received under the Social Security Act were terminated.24 The Court looked at three different areas in determining the merits of Eldridge’s claim and developed a test. The test examines:
First the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.25
Federal district courts have used this test when analyzing due process claims from veterans groups in recent decisions.26 Although the Matthews test has been criticized for giving the court too much discretion,27 it permits the courts to effectively balance the interests of the affected parties.28
In order to analyze PTSD disability compensation procedures under the procedural due process test laid out in Matthews v. Eldridge,29 this article focuses on one of the claims asserted by the veterans groups Veterans for Common Sense and Veterans United for Truth, who work to improve the lives and situations of veterans.30 The two veterans groups came together in Veterans for Common Sense and Veterans United for Truth v. Nicholson where they asserted a variety of claims against the VA for its inefficiency in handling claims of veterans suffering from PTSD.31 Included in their assertions was the claim that veterans were deprived of procedural due process because the VA has non-neutral decision-makers, such as veterans law judges, adjudicating its claims.32 Although the VA motioned to dismiss the various claims of the veterans groups, the court in Nicholson denied the motion for three of four counts, and granted one.33 This case then went to the Northern District of California for a second time with the name Veterans for Common Sense and Veterans United for Truth v. Peake34 as the veterans groups sought injunctive relief from the VA . Veterans for Common Sense and Veterans United for Truth have appealed the decision to the Ninth Circuit Court.35 As a result of the arguments in these cases, the disability claims procedure within the VA will be analyzed under procedural due process.
The first prong of the procedural due process test laid out in Matthews v. Eldridge is to see if the procedures that are in place affect an interest of the individual.36 In the present situation, it is necessary to analyze whether the disability compensation procedure that is currently used by the VA for determining PTSD claims affect a veteran’s interest.37 The Due Process Clause includes constitutional protection when an individual has been deprived of life, liberty, or property.38 A veteran who is claiming compensation for a service-connected disability has a property interest at stake.39 Although the Supreme Court has not clearly held that applicants for benefits have a property interest under procedural due process, it has so been held in every circuit court that benefit applicants may possess a property interest for benefits, such as welfare entitlements.40 Also, the Tenth Circuit made it clear in Gonzales v. City of Castle Rock41 that even if it is found that someone does not satisfy the prerequisites and the conditions necessary to receive the benefit, "the underlying property entitlement remains and cannot be denied without due process of law."42
By taking procedural due process jurisprudence into account, veterans who seek disability compensation their service-connected disability of PTSD have a property interest. Although the situation does not chiefly concern veterans who have already been granted disability compensation and then had it terminated, such as the social security disability benefits in Matthews,43 veterans still have a property interest as applicants for disability compensation. Most of the veterans seeking disability compensation in the present situation did not have present enjoyment of the benefits—they are still trying to receive them. However, veterans continue to have a property interest because, as noted in Roth, they have more than a desire or expectation of it.44 Rather, compensation for their disability is a necessity in order to treat PTSD and they have a legitimate claim to their entitlements from the VA because it is something they would rely on in their daily lives.45 As many federal courts have already noted, applicants have a property interest so long as they fulfill their statutory requirements.46 Because property interests exist when a claimant relies on it in their daily lives47 and courts have ruled that a veteran’s medical care qualifies as a property interest,48 it is clear that veterans who are seeking service-connected PTSD disability compensation have a property interest. Therefore, the first element of the procedural due process test laid out in Matthews v. Eldridge has been satisfied. 49
The second prong of the procedural due process test laid out in Matthews v. Eldridge is analyzing "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards."50 The authority and the nature of the decision-makers within the VA must be analyzed. When a veteran first files a claim, it is reviewed by the VA’s regional office and they determine what rating and amount of money the veteran shall receive.51 But if the veteran disagrees and wants to appeal the rating given by the VA, the decision will go to the Board of Veterans’ Appeals, where veterans law judges [hereinafter VLJs] will decide on the veteran’s case.52 In Veterans for Common Sense v. Nicholson, the plaintiffs argue statutory regulations allow the VA to be the single entity that both tries the facts and decides the claim— the VA therefore has "dual authority."53 VLJs are employed by the Board of Veterans’ Appeals to serve in the VA’s very own court system.54 The fact that veterans’ appeals regarding their disability compensations are being decided by non-independent adjudicators might seem frightening to some. After all, VLJs are employed by a branch of the VA, the same department who pays their salaries, and as a result, the judges may be more likely to be biased and side with the position of their employer.
VLJs are similar to Administrative Law Judges [hereinafter ALJs]—they both "[preside] at an administrative trial-type proceeding to resolve a dispute between a federal government agency and someone affected by a decision of that agency…The major difference between federal ALJs and the VLJs…is that ALJs are appointed under the Administrative Procedure Act of 1946"55 where they are appointed by the agency itself,56 whereas VLJs are appointed by the President.57
When examining the role of decision-makers and ALJs in past Supreme Court decisions, it is clear that they are not supposed to be partial or biased in order to afford due process.58 The Supreme Court has held that "due process requires a ‘neutral and detached judge.’"59 In Gibson v. Berryhill, the Supreme Court ruled that "[it] is sufficiently clear from our cases that those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes."60 Here, the Supreme Court is saying that if adjudicators stand to gain financially or have an interest in the outcome of a case, they should not be the ones deciding the case.61 Presumably, VLJs may have an interest in the case because they are employed by the VA.
In the federal appellate court case of Grant v. Shalala, the dissenting opinion by Circuit Judge Higginbotham emphasized that although the Supreme Court has said that administrative law judges are "functionally comparable" to federal judges, it has "never held that ALJs are federal judges."62 He goes on to argue the independence of an ALJ "is not rooted in the Constitution but rather is a function of the need for administrative efficiency, the recognition of administrative expertise, and the need to build an adequate administrative record for judicial review."63 He writes that ALJs are not the judiciary, but are members of the executive branch of government.64 As a result, ALJs do not have the same protection as federal judges from scrutiny of the court.65
Although it is easy to assume that bias would be more susceptible in an environment where those who are adjudicating are employed by the agency that the action is taken against, the Supreme Court and several federal courts have ruled that actual bias must be shown and not just the potential for bias.66 In order for an ALJ to be disqualified from adjudicating a claim, it is not enough to show the possibility for bias—actual bias needs to be proved and the "mere appearance of impropriety"67 is not enough.68 This precedent case law seemingly shows that VLJs are not actually shown to be biased and therefore, a high risk for erroneous deprivation does not exist.
The third prong of the Matthews v. Eldridge test is analyzing the government’s interest and administrative convenience, which includes "the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."69 In the present situation, the substitute procedure of having judges independent of the VA adjudicate claims needs to be analyzed.
When the Supreme Court has applied the government interest prong in the past, it has considered different aspects.70 In Matthews, the Court said substantial financial burdens should be considered.71 The Court also said that although financial cost is not the only factor considered, the government’s interest is also the public’s interest, and as a result "conserving scarce fiscal and administrative resources is a factor that must be weighed."72
The substitute procedure to analyze would be to have judges who are not employed by the VA to adjudicate appeals for disability ratings given at regional offices to dispose of any potential for bias. This would, no doubt, prove to be an enormous administrative burden on the VA because they would have to revamp their entire appeals process if they removed VLJs and their court system.73 If veterans’ appeals were not handled within the VA’s own court system, it would presumably cause a large backlog of cases within the federal court system and would likely cause more inefficiency. Therefore, there is a lack of government interest when it comes to replacing VLJs and the VA’s court system.
The balancing test used to determine procedural due process in Matthews v. Eldridge provides three prongs to analyze in order to determine if veterans have a claim for non-neutral VLJs adjudicating their appeals.74 The first prong of the test was easily satisfied. Based on the prior rulings of the Supreme Court in Goldberg,75 Roth,76 and Matthews,77 there is a clear property interest in veteran’s disability compensation. The second prong of the risk of an erroneous deprivation and the value of additional or substitute procedural safeguards was not so easily satisfied.78 Although the degree of the consequence of an erroneous deprivation could have negative effects, the actual bias of VLJs would need to be shown in order to violate due process. The third prong of government interest was also not satisfied because the substitute procedure of having non-VA employees adjudicate veterans claims would require the VA to abandon its current court system completely.79 Veterans were not deprived of procedural due process under the analysis of neutral decision makers adjudicating claims. If the risk of erroneous deprivation is not high and the government does not have an interest, there is no procedural due process claim.80
Based on historical trends with United States veterans, statistics are not in favor of the Iraq and Afghanistan veterans who are returning home from war. It has been reported that about "185,000 veterans are homeless in the United States on any given night,"81 many of whom have mental health problems.82 Furthermore, studies show that one out of every four homeless person is a United States war veteran, even though veterans only make up eleven percent of the adult population in the country.83 These are quite alarming statistics because activists are claiming that the high numbers of Iraq and Afghanistan veterans already in homeless shelters is not a good precursor for the future, saying "it took roughly a decade for the lives of Vietnam veterans to unravel to the point that they started showing up among the homeless."84 Directors of veterans affairs predict that they will have a "‘a tsunami of them eventually because the mental health toll from this war is enormous.’"85
In order to prevent the War on Terror veterans from meeting this fate, it is imperative for the VA to take urgent action and aid the returning veterans from Iraq and Afghanistan promptly. The system for administering medical care and disability payments to veterans with PTSD needs to be more efficient and resourceful so that the men and women can get help sooner, and therefore heal sooner. One out of five men and women that have been deployed have returned from their service suffering from PTSD or major depression.86 Now that they served our country, the VA should be all that it can be for the veterans.
1 RAND Corporation, One In Five Iraq and Afghanistan Veterans Suffer from PTSD or Major Depression, RAND, Apr. 17, 2008, http://www.rand.org/news/press/2008/04/17/index.html.
2 Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
3 American Psychiatric Association, DSM-IV: Diagnostic & Statistical Manual of Mental Disorders § 309.81 (4th ed. 1994).
4 National Institute of Mental Health, Anxiety Disorders: Post-Traumatic Stress Disorder, NIMH, June 2008, http://www.nimh.nih.gov/health/publications/anxiety-disorders/post-traumatic-stress-disorder.shtml.
7 RAND Corporation, One In Five Iraq and Afghanistan Veterans Suffer from PTSD or Major Depression, RAND, Apr. 17, 2008, http://www.rand.org/news/press/2008/04/17/index.html.
11 U.S. Department of Veterans Affairs. A Summary of VA Benefits: Putting Veterans First, April 2008.
12 38 U.S.C.A. § 1155 (West 2001).
13 Id. ("The Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries.").
14 38 U.S.C.A. § 1155 (West 2001).
15 Id. ("The schedule shall be constructed so as to provide ten grades of disability and no more, upon which payments of compensation shall be based...").
16 38 U.S.C.A. § 1155 (West 2001).
17 38 C.F.R. § 4.130 (2008).
19 Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 2008, at 16.
21 Id. at 89.
22 424 U.S. 319 (1976).
23 Erwin Chemerinsky, Constitutional Law: Principles and Policies 558 (Aspen Law and Business 2d ed. 2002).
24 Matthews v. Eldridge, 424 U.S. 319, 323-25 (1976).
25 Id. at 335. See Chemerinsky, supra note 23, at 558-59.
26 Veterans for Common Sense and Veterans United for Truth v. Nicholson, No. C-07-3758 SC, 2008 WL 114919 (N.D.Cal. 2008); Veterans for Common Sense and Veterans United for Truth v. Peake, 563 F. Supp. 2d, 1049 (N.D. Cal. 2008).
27 Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532, 562 (1985) (Rehnquist, J. dissenting) ("The balance is simply an ad hoc weighing which depends to a great extent upon how the Court subjectively views the underlying interests at stake.").
28 Matthews, 424 U.S. at 335.
30 Veterans for Common Sense, About us: Our Mission, 2008, http://www.veteransforcommonsense.org/moduleid/11.
31 Nicholson, No. C-07-3758 SC, 2008 WL 114919 (N.D.Cal. 2008). The court did not address the issue of non-neutral adjudicators within the VA in depth.
32 Complaint for Declaratory and Injunctive Relief at 50, Veterans for Common Sense v. Nicholson, No. 07-3758 (N.D. Cal. 2007).
33 Nicholson, No. C-07-3758 SC, 2008 WL 114919, at *20 (N.D.Cal. 2008).
34 Veterans for Common Sense and Veterans United for Truth v. Peake, 563 F. Supp. 2d, 1049 (N.D. Cal. 2008).
35 See Opening Brief of Plaintiffs-Appellants at 35-36, Veterans for Common Sense and Veterans United for Truth, Inc. v. Peake, No. C-07-3758-SC (9th Cir. Dec. 10, 2008). The oral arguments are scheduled for August 12, 2009 in the Ninth Circuit Court of Appeals.
36 Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
38 U.S. Const. amend. V and amend. XIV, § 1.
39 See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) ("To have a property interest in a benefit, a person… must, instead, have a legitimate claim of entitlement to it.").
40 Kapps v. Wing, 404 F.3d 105, 115 NY (2d Cir. 2005) (Referencing See Kelly v. Railroad Ret. Bd., 625 F.2d 486, 489-90 (3d Cir.1980); Also See Kraebel v. New York City Dep’t of Hous. Preservation & Dev., 959 F.2d 395, 404-05 (2d Cir.1992ATTN:.
41 Gonzales v. City of Castle Rock, 366 F.3d 1093 (10th Cir. 2004) (rev’d en banc in part,. cert. granted on other grounds, 543 U.S. 955 (2004).
42 Id. at 1103, n.7. (referencing Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978)).
43 Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
44 Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
46 Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 320 (1985).
47 Roth, 408 U.S. at 577.
48 Veterans for Common Sense v. Nicholson, 2008 WL 114919, at *18.
49 Matthews, 424 U.S. at 335
51 Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 2008, at 89, http://www1.va.gov/opa/vadocs/fedben.pdf.
52 Veterans Judicial Review Act of 1988., Pub.L. No. 100-687, 102 Stat. 4105 (1988). Chapter 72 United States Court of Veterans Appeals, Subchapter I: Organization and Jurisdiction § 4053 Composition (a).
53 Complaint for Declaratory and Injunctive Relief at 50, Veterans for Common Sense v. Nicholson, No. 07-3758 (N.D. Cal. 2007).
54 Veterans Judicial Review Act of 1988, Pub.L. No. 100-687, 102 Stat. 4105 (1988). Chapter 72 United States Court of Veterans Appeals, Subchapter I: Organization and Jurisdiction, § 4053 Composition (a).
55Statement of Barton F. Stichman: Hearings Before the Subcomm. on Disability Assistance and Memorial Affairs of the Committee on Veteran’s Affairs, U.S. House of Representatives, 110th Cong. (2007). Available at http://veterans.house.gov/hearings/Testimony_Print.aspx?newsid=115&Name=_Barton_F._Stichman.
56 5 U.S.C. § 3105 (2008).
57 Veterans Judicial Review Act of 1988. , Pub.L. No. 100-687, 102 Stat. 4105 (1988). Chapter 72 United States Court of Veterans Appeals, Subchapter I: Organization and Jurisdiction § 4053 Composition (b).
58 Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 617 (1993). See Bloom v. Illinois, 391 U.S. 194, 205 (1968); Johnson v. Mississippi, 403 U.S. 212, 215 (1971) ("Trial before ‘an unbiased judge’ is essential to due process."); Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971).
59 Concrete, 508 U.S. at 617.
60 Gibson v. Berryhill, 411 U.S. 564, 579 (1973).
61 Id. See also Tumey v. Ohio, 273 U.S. 510, 523 (1927).
62 Grant, 989 F.2d at 1354. (Higginbotham, J., dissenting).
63 Id. (Citing to Weinberger v. Sulfi, 422 U.S. 749, 765 (1975)).
64 Grant v. Shalala, 989 F.2d 1332, 1354 (3d Cir. 1993). (Higginbotham, J., dissenting).
66 Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (holding that due process requires a fair trial before a judge with no actual bias.).
67 Bunnel, 336 F.3d at 1115.
69 Matthews v. Eldridge, 424 U.S. 319, 335 (1976). See Chemerinsky, supra note 23, at 558-59.
70 Matthews, 424 U.S. at 347. Goldberg v. Kelly, 397 U.S. 254, 264-65 (1970).
71 Matthews, 424 U.S. at 347.
72 Matthews, 424 U.S. at n. 10 (referencing Judge Henry Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, at 1303).
73 Veterans Judicial Review Act of 1988. , Pub.L. No. 100-687, 102 Stat. 4105 (1988). Chapter 72 United States Court of Veterans Appeals, Subchapter I: Organization and Jurisdiction. § 4053 Composition (a).
74 Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
75 Goldberg v. Kelly, 397 U.S. 254, 263 (1970).
76 Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
77 Matthews, 424 U.S. at 341.
78Id. at 335.
79 See Complaint for Declaratory and Injunctive Relief at 50, Veterans for Common Sense v. Nicholson, No. 07-3758 (N.D. Cal. 2007).
80 See Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
81 Patricia R. Olsen, A Place to Leave the Wars Behind, N.Y. Times, Nov. 11, 2007, at H18.
83 The Associated Press, Veterans Make Up 1 in 4 Homeless, USA Today, Nov. 7, 2007, http://www.usatoday.com/news/nation/2007-11-07-homeless-veterans_N.htm.
85 Id. (quoting Daniel Tooth).
86 RAND Corporation, supra note 1.
Purvi Shah is a third year law student at Northern Illinois University College of Law, expected to graduate in May, 2010. She is an editor of the Northern Illinois University Law Review, a Moot Court and Mock Trial participant, and the outgoing President of the Asian Pacific American Law Student Association. She graduated with honors from Purdue University in May of 2007 with Bachelor’s degrees in both political science and psychology. She would like to thank her family and friends for their unconditional love and support.