Thirty Years After Walters the Mission Is Clear, The Execution Is Muddled: A Fresh Look at the Supreme Court's Decision to Deny Veterans the Due Process Right to Hire Attorneys in the VA Benefits Process

President Lincoln’s promise “To care for him who shall have borne the battle” reverberates throughout history as America’s promise to care for her wounded veterans. Because it is our moral obligation to care for our veterans, Congress has determined that the process for them to apply for benefits due to injury in service should be informal and non-adversarial, with every benefit of the doubt going to the veteran. Thirty years ago, the Supreme Court relied on this non-adversarial nature of the Department of Veterans Affairs (VA) to limit a veteran’s Fifth Amendment due process rights to hire an attorney in the VA process in the case of Walters v. National Association of Radiation Survivors. The Court held that the constitutionally valid limitation on attorneys is hinged on the coexisting condition that the VA’s system is sufficiently “non-adversarial” so that no attorney should be necessary. The Walters Court findings continue to influence cases examining veterans’ rights today.Despite the findings of the Court in Walters, this article contends that a court reviewing the limitation of a veteran’s ability to hire an attorney today should come to the opposite conclusion of the Walters court. The circumstances in the veterans benefits system now clearly demonstrate that the Court’s assumption that the VA system is a veteran-friendly, non-adversarial one is no longer a valid assumption. Long delays; large numbers of remands from the federal courts; scandals plaguing the VA; and policies at the VA that erode the non-adversarial process a bit at a time are examples of the changing landscape at the VA. In light of these and other changes, it appears the time has come to admit that the VA’s disability compensation system has become de facto adversarial at all levels of the adjudication process. The fact that the VA benefits system is no longer purely non-adversarial changes the circumstances in which the Walters Court decided that Congress’ limitation on attorneys did not violate veterans’ Fifth Amendment due process rights. It also leads to the conclusion that due process now demands that veterans rights no longer be limited.While the ideal of a non-adversarial system should continue to be striven for in the veteran compensation system, the reality is that the VA alone cannot ensure this environment. Veterans are entitled to our best efforts to administer their benefits to them in as veteran-friendly and non-adversarial a manner as we can. Thus, by denying veterans certain safeguards that the VA cannot provide, we are doing our veterans a disservice and violating their Constitutional rights.Part I will discuss the historical beginnings of the VA’s mission and the current process for a veteran to receive benefits from the VA. Part II will consider the historical underpinnings of the VA’s non-adversarial system and review the history of attorney representatives in the VA process. It will also discuss the Supreme Court decision in Walters and the changes in the law that brought judicial review to VA decisions and codified the VA’s duties to a veteran. Part III will analyze the current state of the non-adversarial system of the VA and the problems the VA has recently had in implementing a non-adversarial, veteran-friendly system. Part IV will propose that the current state of affairs at the VA require a new evaluations of a veteran’s due process right to an attorney under the Mathews test. It will also propose that the best way to preserve the veteran-friendly nature of the VA’s system is to allow attorneys to help veterans in this process and alleviate the burden on the VA.