Delay, Deny, Wait Till They Die: Balancing Veterans’ Rights and Non-Adversarial Procedures in the VA Disability Benefits System

Abstract

The refrain “Delay, Deny, Wait Till They Die” is more than a slogan for disabled American veterans. It is a battle cry for soldiers, sailors, and airmen who have long put aside their armaments but remain entangled in the unending appeals process of the Department of Veterans Affairs’ (VA) disability benefits system. When Congress created a system for the fair and equitable distribution of military benefits, it did so with the intent that the system be non-adversarial. Congress did not want disabled veterans pitted against the nation that they had sought to defend in litigation over disability benefits. However, defining the contours of that non-adversarial system has proven to be more difficult than Congress ever anticipated. The paternalistic and protective features of the system designed to insulate veterans from the burdens of adversarial litigation have left veterans without legal recourse to address system failures. Using the VA’s process for developing expert medical testimony as an example, the article examines the costs and benefits of the non-adversarial process, and argues that adversarial procedures must be woven into the fabric of the veteran-friendly system to ensure that veterans’ rights are protected. The article concludes that without adversarial processes to compliment the veteran-friendly rules, the VA model relegates disabled veterans to a substandard process for adjudicating disability benefits.