Written by Fall 2023 M-VETS Student Advisor J. Jordan Caruso.
“It is hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong.”[1]
It is uncontroversial that the ideal of expertise underlies the establishment and functioning of administrative agencies.[2] One expects that such expertise includes a level of competence that minimizes the occurrence of administrative errors. “Bureaucratic organizations are meant to be technical, rational, and consistent, which serves to maximize predictability in part through minimizing the risk of errors.”[3] But the reality for too many individuals is that administrations are responsible for numerous avoidable mistakes. To prevent such errors and mitigate the burden of experiencing them, I propose two models for the DVA to consider: (1) a lawyer-administrator and (2) an Ombudsman.
During my two semesters as a Student Advisor (SA) for Mason’s Veterans and Servicemembers (M-VETS) pro bono legal clinic, I had the privilege of partnering with a fellow-SA, Amanda Nhek, to argue before the Board of Veterans Appeals (BVA) on behalf of one Veteran, a former Navy Sailor who served for 13 years. The Department of Veterans Affairs (DVA) could not seem to get this particular Veteran’s disability claim right. Over the course of many years, M-VETS successfully moved the DVA to correct several mistakes regarding the disability claim. When my partner and I volunteered to work the case, M-VETS had its eyes on two remaining issues: a jaw disorder and a chronic migraine condition. In preparing for the hearing, my partner and I met at least twice a week, often with the Director of the clinic, Timothy MacArthur, to work through the issues, prepare evidence and filings, and rehearse the arguments we would eventually make before the BVA. I primarily focused on the jaw disorder claim while my partner took point on the migraine claim. Regarding the migraine condition, the DVA service-connected the condition but denied a compensable disability rating on multiple occasions despite the condition’s debilitating severity. Regarding the jaw disorder, the DVA repeatedly denied service-connection, despite multiple diagnoses by different medical providers in the Veteran’s service record.
Mistake #1: Failing to Read the Veteran’s Record
When a veteran claimant files a substantially complete disability claim, in theory, the DVA is supposed to review the veteran’s claim, including his or her entire service record, and service-connect those claimed disabilities that are linked to an event in service.[4] Typically, a diagnosis from a military health provider is sufficient to show service-connection.[5] Yet, despite our client’s record containing at least three separate diagnoses for the same condition from different military health providers, the DVA denied service-connecting the jaw disorder due to insufficient evidence.
Did the administrator read our client’s service record? I didn’t think so. But in good faith and zealous advocacy, M-VETS advised the Veteran to obtain current medical opinions from medical providers. The Veteran received another diagnosis, confirming the diagnoses of previous military professionals in the Service Record. We pressed the issue again, this time armed with the new medical evidence and a legal brief that left the DVA administrators with little work to do.
Mistake #2: Failing to Read the Veteran’s Record, Again
Before appealing the issues to the BVA, M-VETS submitted extended briefs and additional evidence to help the DVA correct these issues. For the jaw disorder, the DVA required the veteran to go through another DVA medical examination. These examinations are par for the course of a disability claim. When a veteran submits a substantially complete disability claim, the DVA has a statutory duty to provide the veteran with a medical examination or opinion if needed to substantiate the veteran’s claim.[6] A DVA medical examiner is supposed to review a veteran’s entire service record, provide a summary of the veteran’s medical history, and reference pages in the record that the examiner relied upon to form his or her opinion.
When we got the rating decision back from the DVA, we noticed that the medical examiner believed that our client did not have the claimed jaw disorder but was actually just a teeth-grinder. The medical examiner’s summary of our client’s medical history was vague and far too short, claiming that the veteran had no history of the jaw disorder. Because we had reviewed the veteran’s entire service record, we knew this was false, and appealed the issue to the BVA.
The BVA Read the Veteran’s Record
This appeal was years in the making. After preparing all semester, we presented the case before a Veterans Law Judge and his law clerk; both of which listened carefully and sympathetically to our arguments and our client’s testimony. My partner argued the migraine issue and persuaded the Court to grant a 30% compensable disability rating for the condition, including back-pay to the Veteran’s date of filing. As for the jaw disorder, I articulated the standard, showed that the condition met the standard, and directed the Court’s attention to the relevant evidence—hitherto ignored—in the Veteran’s DVA file. The BVA acknowledged the merits and remanded the issue back to the DVA, instructing the administrators and medical examiners to thoroughly review the Veteran’s service record and provide a detailed opinion that references the relevant pages we brought to the Court’s attention. This, too, we considered a win.
Sometimes it takes a judge and lawyer. In our client’s case, it required an appeal to the BVA to tell the administration to do what it should have done in the first instance. At this point, to get the benefits the Veteran was entitled to required several years of time and attention. The Veteran was required to undergo unnecessary medical appointments just to amount cumulative evidence. Over the years, M-VETS wrote nearly a dozen incredibly detailed legal briefs to clarify the claim for the sake of the DVA administrators, not to mention countless hours spent sifting through the Veteran’s 10,000+ page file to make the rater’s decision that much easier. Luckily for our client, M-VETS is a pro-bono legal clinic with purpose-driven leaders; but I cannot help but think of the thousands of veterans who do not get help from a clinic or who cannot afford a lawyer.
Mistake #3: Ignoring the BVA and Refusing to Read the Record
Upon remand from the BVA, the DVA reopened their review of the jaw disorder claim and ordered another medical examination. When the BVA remands a veteran’s claim to the DVA, the new decision automatically goes back up to the BVA for review to ensure the DVA complied with the Court’s orders. In our client’s case, the BVA remanded the jaw issue with detailed instructions that the DVA rater or medical examiner needed to view the previous diagnoses in the Veteran’s file and provide a clear rationale for each conclusion based on the record. The DVA again denied service-connection for the jaw disorder.
After this denial, M-VETS had about forty-five days to file a response to be reviewed by the BVA with the DVA’s decision. As I wrote the brief reiterating our points and pointing to the DVA’s errors, I noticed that the medical examination after remand was performed by the same medical examiner who seemed to ignore the veteran’s service record years earlier. This medical examiner—even after remand and detailed instructions from a Veteran’s Law Judge—copied and pasted his summary of medical history from his first examination and wrote two sentences saying that he had examined the veteran a few years ago and concluded the veteran did not have the jaw disorder. That was the only rationale provided. I made sure to highlight this fact in the brief to the BVA.
Several weeks later, the BVA came back and granted the Veteran the relief we asked for. The BVA decided that enough was enough; it service-connected the jaw disorder based on the diagnoses in the Veteran’s file and granted a 10% compensable disability rating based on the painful motion principle.[7] Sometimes it takes a judge and a lawyer.
The Ordinary Experience of Administration
Administrative government is a constant topic of scholarly debate, and unsurprisingly so. Although government administration has existed in the United States since its founding, the current “administrative state” has exploded since the 1940s and has reached into nearly every corner of American society.[8] Administration is no longer something that occurs in a distant headquarters building at the nation’s capital, but is something every American experiences in ordinary life. As one law professor puts it, “the renewed attention has been prompted by practices that are widely perceived as problematic, irregular, or even abusive. Examples include the imposition of civil fines by bureaucratic edict; ‘non-final’ enforcement actions that effectively thwart private citizens’ businesses or use of their land; the holdup of permits or licenses, and their conditioning on well-nigh extortionate demands; sudden changes of agency policy, accomplished by means of adjudication and without fair warning to the parties; the opportunistic shifting of enforcement proceedings from Article III courts into agency tribunals; and the administrative ‘death squadding’ of invention patents that cannot be canceled in any U.S. court.”[9]
Much of the legal and academic discourse around administrative law focuses on judicial deference, the separation of powers, or public policy decisions. Yet, the lived experience of individuals petitioning administrative agencies is better characterized as constant battles to move the agencies to do their jobs correctly.
Our client’s experience with the DVA is hardly peculiar. In 2019, a team of Stanford scholars authored a study that characterized “rampant errors and a backlog of appeals cases” as a “plague[] . . . of the nation’s administrative system.”[10] Furthermore, the plague of administrative erring is not unique to the DVA. The Office of the Inspector General of the Social Security Administration (SSA) released a report in November 2023 that found the SSA overpaid $11.1 billion and underpaid $3.5 billion to beneficiaries.[11] Under the Department of Labor, the Employee and Training Administration (ETA) estimated that the national improper payment rate for Unemployment Insurance in 2023 was 16.47%, though a given state may vary significantly.[12]
My personal experience is of the same ilk. When I petitioned the United States Citizenship and Immigration Service (USCIC) in 2020 for my spouse’s immigration, the agency misrouted my case to be processed as if my spouse already resided in the United States rather than going through the National Visa Center (NVC) to allow her to enter the border. USCIS lost my casefile for nearly seven months. In addition to sending letters and visiting field offices, I called USCIS nearly every day for six months to press them to fix the issue, waiting on hold for at least an hour each time. Many repetitions taught me that I needed to say magic words to get a live representative on the phone, who usually knew nothing more than one could learn from the USCIS website. It was possible to elevate an issue to an “immigration officer,” which required you to wait for a return call that rarely ever came. If the phone lines were busy, the automated service would refuse to connect you to a representative and automatically end the call. I finally—as a “Hail Mary”—wrote a detailed complaint to the White House. About a month later, I received an email saying that the White House received my note and referred my issue to the proper authorities. Three days later, USCIS located my casefile and routed it to the NVC. About a day or two after that, NVC notified me that they received my immigration file and began processing my spouse for entry into the United States.[13]
Administrative Errors Cause Administrative Burden
Administrative errors create administrative burden.[14] In their investigation of how administrative burden “affects fair treatment and access to (social) rights,”[15] scholars explain that “[b]urdens can cause learning costs (finding out how procedures work and what services are available), psychological costs (social stigma associated with welfare services or stress caused by onerous procedures), and compliance costs (time and money spent on rules and requirements).”[16] Administrative burden is not just about time and money, but justice. Whether or not a person agrees with legislative welfare schemes, once an entitlement is granted to a class, then it becomes a matter of fairness and the rule of law in granting or denying benefits.[17] Even aside from the merits of an entitlement, a person has a natural right to due process in our country, yet the burden of correction falls on the individual while facing an “escalation of consequences” because errors “spread automatically through the system, but corrections do not.”[18] Although the due process aspects of administrative law at the level of Article III appellate courts are hotly debated, all theories seem to assume the administration is doing its job. But if the administration refuses to read a petitioner’s casefile, then there was no due process from the start.
A Simple Solution for Administrative Competence.
While many scholars have offered high-level solutions of law and policy,[19] many of which are meritorious, the problem I am attempting to magnify is basic. Whether we view it in terms of competence, accountability, or due care, the problem is one at the lower, foundational levels of administration. My aim is to meet the basic problem with a simple solution based on experience: that it takes a judge and lawyer. Much of the discourse surrounding administrative law focuses on agency deference afforded by Article III courts or structures of oversight in the Legislative and Executive branches, but the reality is that the typical veteran is not equipped with the resources to appeal to the BVA, let alone to the Court of Appeals for Veteran’s Claims or higher. It seems that it would not only save the DVA time and resources, but would also do justice for veterans if a lawyer reviewed rating decisions of the lower level administrators. Simply position a lawyer at the administrative level.[20]
I use the word “simply,” but I am aware that some may object this too would cause inefficiency or unnecessary cost. Lawyers are expensive and are surely fallible. But one thing the legal profession inculcates is attention to detail, which seems to me the thing that administrators are severely lacking. Lawyers are also trained to think like judges and anticipate appealable errors versus harmless ones.[21] In theory, a simple legal review of work product in the first instance could help prevent countless administrative errors and mitigate burdens on both the government and beneficiaries.
Some might also object that resolving the problem of administrative error is simply impractical because administration requires administrators and administrators require training. A healthy environment for any worker requires a certain degree of freedom to make mistakes and learn from them. And there will always be a “new guy.” But the basic oversight of a lawyer’s legal review is not that type of managerial supervision. Of course, I do not want disability raters to lose their job for making a mistake now and then. The legal review should be a skilled check independent of an administrator’s channel of supervision and accountability, allowing correction for the sake of the beneficiary without impeding on the leadership of supervisors. Furthermore, an independent legal review would likely save time rather than extend it because the lawyer’s eyes are trained to see what the ordinary non-lawyer’s cannot. A lawyer’s review of rating decisions can prevent administrative errors from causing the “escalation of consequences”[22] and a vicious cycle of appeals and denials.
The Ombudsman Solution
Taking the idea of a low-level legal review one step further, the experience of administration suggests the need for something like an Ombudsman.[23] Potential beneficiaries need an expedient avenue to point an agency’s attention to its own errors, like a grievance or complaint department of a hardware store or an authoritative referee that is independent of the agency (not unlike the Board of Veteran’s Appeals, but at the operational level). When an administrator errors or just fails to read the file, the disabled veteran—or any beneficiary for that matter—should not have the burden of repetitive filings or judicial appeal to move the government agency to correction. Ombudsing has a rich tradition surrounded by a wealth of literature, in which one can find diverse models to fit agencies’ situations.[24] Modern democratic regimes provide various Ombudsman models and many nations have effectively implemented the institution for the protection of human rights and correction of maladministration in government.[25] An analogous institution in American governance is the Office of the Inspector General, which typically investigates or audits its respective government agency, provides it guidance, and reports to overseeing institutions. What the Ombudsman offers that Offices of Inspectors General do not is two-fold: legal authority and public accountability. The Ombudsman’s duty is to individuals, not the government, yet the Ombudsman wields authority to move the government. The underlying ideals are similar to those that found the independent judiciary, but it pinpoints that analogous power and duty at the operational level. Whereas a lawyer providing legal review would help prevent administrative errors, an Ombudsman would help correct them expediently and relieve grieved beneficiaries from having to push through the current (and exhausting) administrative remedies.
[1] Thomas Sowell, Wake Up, Parents, Jewish World Review (Aug. 18, 2000), https://www.jewishworldreview.com/cols/sowell081800.asp.
[2] See Wendy E. Wagner, A Place for Agency Expertise: Reconciling Agency Expertise with Presidential Power, 115 Colum. L. Rev. 2019, 2023 (2015) (“Although the hypertechnicality of agency rules is a more recent phenomenon, the basic concept that the agencies should preside over specialized information is hard-wired into the design of the administrative state.”). In one famous case, the U.S. Supreme Court held that judges should afford deference to the work product of agencies based on the assumption that agencies possessed greater expertise over their own statutes and policies. See SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 209 (1947) (explaining that “administrative judgments are entitled to the greatest amount of weight [when they concern] . . . the product of administrative experience, appreciation of the complexities of the problem, realization of the statutory policies, and responsible treatment of the uncontested facts. It is the type of judgment which administrative agencies are best equipped to make and which justifies the use of the administrative process.”). See also Ronald J. Krotoszynski Jr., Why Deference: Implied Delegations, Agency Expertise, and the Misplaced Legacy of Skidmore Administrative Law Discussion Forum, 54 Admin L. Rev. 725, 736 (2002).
[3] Matthew M. Young et al., Complexity, Errors, and Administrative Burdens, Pub. Mgmt. Rev., 21 Dec 2023, at 1, https://doi.org/10.1080/14719037.2023.2288247.
[4] Every disability claim has two elements: service-connection and disability rating. The legal standard is to service-connect a veteran’s (1) current disability (2) that presents a continuity of symptoms and (3) is related to an event or diagnosis during the veteran’s military Service. Disability ratings, on the other hand, generally follow the interpretive guidelines of Schedule for Rating Disabilities, 38 C.F.R. Part 4, which catalogs a multitude of conditions, each with a rating scheme.
[5] See Direct Service Connection (SC) and Service Incurrence of an Injury, M21-1, Part V, Subpart ii, 2.A., available at https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000180481/M21-1-Part-V-Subpart-ii-Chapter-2-Section-A-Direct-Service-Connection-SC-and-Service-Incurrence-of-an-Injury?query=M21-1%20Service%20Connection; accord Principles Relating to Service Connection, 38 C.F.R. § 3.303.
[6] See Duty to Assist Claimants, 38 U.S.C. § 5103A(d); Providing Medical Examinations or Obtaining Medical Opinions, 38 CFR § 3.159(c)(4). See also Evidentiary Standards for Finding an
Examination or Opinion Necessary, M21-1, Part IV, Subpart i, 1.B., available at https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000180495/M21-1-Part-IV-Subpart-i-Chapter-1-Section-B-Evidentiary-Standards-for-Finding-an-Examination-or-Opinion-Necessary.
[7] See Painful Motion, 38 C.F.R. § 4.59 (2017). See also Painful Motion and Functional Loss, M21-1, Part V, Subpart iii, 1.A., available at https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-us/portal/554400000001018/content/554400000014407/M21-1-Part-V-Subpart-iii-Chapter-1-Section-A-Painful-Motion-and-Functional-Loss.
[8] See, e.g., Aaron L. Nielson, Three Wrong Turns in Agency Adjudication, 28 Geo. Mason L. Rev. 657, 658–59 (2021) (“Although it can be abused, agency adjudication . . . is a longstanding feature of administrative law . . . [and] is also controversial.”); Arjan Widlak & Rik Peeters, Administrative Errors and the Burden of Correction and Consequence: How Information Technology Exacerbates the Consequences of Bureaucratic Mistakes for Citizens, 12:1 Int’l J. Elec. Governance 40, 43 (2020) (citation omitted) (“As bureaucracies continue to survive and even thrive, . . . critics continue to point out their dysfunctional tendencies.”).
[9] Michael S. Greve, Why We Need Federal Administrative Courts, 28 Geo. Mason L. Rev. 765, 768 (2021) (internal citations omitted).
[10] May Wong, Stanford research finds flaws in veterans’ claims system, Stanford News (March 6, 2019), https://news.standofrd.edu/2019/03/06/new-research-finds-flaws-veterans-claims-system/; Daniel E. Ho et al., Quality Review of Mass Adjudication: A Randomized Natural Experiment at the Board of Veterans Appeals, 2003–16, 35:2 J. Law, Econ., and Org. 239–288 (2019), https://doi.org/10.1093/jleo/ewz001.
[11] Andy Markowitz, What if my Social Security benefit is the wrong amount? (March 25, 2024), American Association of Retired Persons (AARP), https://www.aarp.org/retirement/social-security/questions-answers/benefit-payment-wrong-amount.html; Off. of Inspector Gen., Soc. Sec. Admin., 022330, Management Advisory Report: The Social Security Administration’s Major Management and Performance Challenged During Fiscal Year 2023 (2023).
[12] Emp. and Training Admin., U.S. Dep’t of Lab., Unemployment Payment Accuracy by State, https://www.dol.gov/agencies/eta/unemployment-insurance-payment-accuracy (last visited May 13, 2024) (searchable database on unemployment overpayment data based on State Benefit Accuracy Measurement (BAM) reporting from July 1, 2020 to June 30, 2023).
[13] Obviously, I can only speculate as to what happened behind the scenes, but I like to think that all it took to move an agency to do its job was a single call from someone in a position of power.
[14] Matthew M. Young, et al., Complexity, Errors, and Administrative Burdens, Pub. Mgmt. Rev. (21 Dec. 2023), https://doi.org/10.1080/14719037.2023.2288247 (citing Burden, et al., The Effect of Administrative Burden on Bureaucratic Perception of Policies: Evidence from Election Administration, 72:5 Pub. Admin. Rev. 741–751 (2012), https://doi.org/10.111/j.1540-6210.2012.02600.x) (“Administrative burdens exist when citizens experience policy compliance requirements as onerous.”).
[15] Arjan Widlak & Rik Peeters, Administrative Errors and the Burden of Correction and Consequence: How Information Technology Exacerbates the Consequences of Bureaucratic Mistakes for Citizens, 12:1 Int’l J. Elec. Governance 40, 43 (2020).
[16] Arjan Widlak & Rik Peeters, Administrative Errors and the Burden of Correction and Consequence: How Information Technology Exacerbates the Consequences of Bureaucratic Mistakes for Citizens, 12:1 Int’l J. Elec. Governance 40, 43 (2020).
[17] An objector should note that “the first Congress provided compensation to disabled veterans.” Aaron L. Nielson, Three Wrong Turns in Agency Adjudication, 28 Geo. Mason L. Rev. 657, 658 (2021) (citing Harold J. Krent, Presidential Control of Adjudication Within the Executive Branch, 65 Case W. RSRV. L. Rev. 1083, 1089 (2015)).
[18] Arjan Widlak & Rik Peeters, Administrative Errors and the Burden of Correction and Consequence: How Information Technology Exacerbates the Consequences of Bureaucratic Mistakes for Citizens, 12:1 Int’l J. Elec. Governance 40, 50–51 (2020) (illustrating the heavy burden on citizens to successfully correct an administrative mistake).
[19] The U.S. Merit Systems Protection Board has suggested that administrators operate under the false assumption that procedural mistakes cannot be fixed in real time, recommending that agencies adopt the practice of simply cancelling what they have done and starting the process over. See Off. of Policy & Evaluation, U.S. Merit Sys. Prot. Bd., Adverse Actions: Agency Officials’ Substantive and Procedural Errors and How to Fix Them, in Adverse Actions: A Compilation of Articles, at 43–44 (December 2016), available at https://www.mspb.gov/studies/viewallstudies.htm.
[20] I am grateful to Timothy MacArthur, Director of M-VETS and Professor at Antonin Scalia Law School, George Mason University, for suggesting this idea.
[21] Nicholas Bagley, Professor of Law at University of Michigan Law School, argues that the rule of prejudicial or harmless error is an underutilized and largely forgotten by courts as a remedial mechanism for administrative law cases. See Nicholas Bagley, Remedial Restraint in Administrative Law, 117:2 Colum. L. Rev. 253, 258–60 (2017).
[22] Widlak & Peeters, Administrative Errors and the Burden of Correction and Consequence: How Information Technology Exacerbates the Consequences of Bureaucratic Mistakes for Citizens, supra note 18.
[23] I am grateful to Jeremy Rabkin, Professor of Law at Antonin Scalia Law School, George Mason University, for talking through these issues with me and suggesting the Ombudsman model.
[24] See C. McKenna Lang, A Western King and an Ancient Notion: Reflections on the Origins of Ombudsing, 2:2 J. Conflictology 56 (2011).
[25] See generally Benjamin S. Buckland & William McDermott, Ombuds Institutions for the Armed Forces: A Handbook (2012) (providing a comprehensive study of the Ombudsman institution and outlining various implementations across the globe).
