Four standards of review at the Veterans Court.

black man hand holding pen reviewing check list

When appellate courts review the decisions of lower courts - or in administrative law where a Court like the US Court of Appeals for Veterans Claims (CAVC) reviews the decisions of the BVA, an administrative tribunal - they use "standards of review" to assess whether or not there was an error in the decision below.

These standards of review exist to create fairness and consistency in the law.

That fairness is not just to the parties, but to the lower tribunal as well.

Standards of review recognize that fairness is owed to the parties (every case that has a certain type of error will be judged by the same standard) and to the lower tribunal (deference to the lower tribunal, which is often in the best position to adjudicate issues closely related to the case).

A long-term criticism of the Veterans Court is that their decisions rarely do more than give a passing nod to the concept of standards of review; the standard is usually quoted in the decision but rarely applied in a clear and transparent and consistent way.

I tend to agree with this criticism - the body of law at the Veterans Court is very difficult to navigate. I can pull 4-5 cases dealing with the same legal error and see 4-5 different approaches from the Veterans Court. Rarely do any of those approaches really articulate the role of the standard of review.

More on that another day.

The CAVC standards of review are essential for any practitioner at the Veterans Court to know inside and out. If a party's briefing does not convince the Court that the BVA committed an error under the appropriate standard of review, the party is not going to win.

At the appellate level, it's all about the standard of review.

But standards of review are really important for attorneys who represent veterans at the agency or BVA level. Why?

The savvy veteran's advocate at the BVA is going to make sure that the evidence in her client's file is designed to overcome the standard of review in the most likely BVA errors.


Because you have 2 equally important missions as an advocate before a fact-finder:

Mission #1: Win.

Mission #2: Preserve Error for Appeal.

In a traditional adversarial proceeding like a jury trial or a bench trial, you can preserve error through objections. The BVA is, at least in theory, a non-adversarial process.

This means that attorneys presenting a case, either for a hearing or on a brief, do not have the ability to document (read: preserve) BVA errors through an objection and an offer of proof.

Let's dive in to the 4 standards of review at the Court of Appeals for Veterans Claims (CAVC).

The 4 Standards of Appellate Review.

There are additional standards of review than those listed below, but they arise in unusual situations or specific types of appeals.

For attorneys representing veterans in pure "compensation" appeals to the BVA, there are only four (4) relevant standards of review at the US Court of Appeals for Veterans Claims: adequate reasons and bases, de novo review, clear error, and abuse of discretion.

In all fairness, the first standard of review (adequate reasons and bases) is not really a standard of review. It's a threshold element that a BVA decision must meet to allow the Court to review the particular issue under the appropriate standard of review. Whatever type of case the BVA adjudicates, its findings of fact and conclusions of law must always be supported by a statement of adequate reasons and bases. 38 U.S.C. §7104(d)(1).

As to the remaining CAVC standards of review - clear error, abuse of discretion, and de novo - each is tied to the common adjudications performed by a fact-finder: finding of fact, application of law to fact, or legal interpretation.

1. Adequate Reasons and Bases

This is not a standard of review, although many times you will see cases argued and decisions rendered that treat it as such.

It is, instead, the basic level of expectation of what should be in a BVA decision. Congress wrote that every BVA finding of fact and conclusion of law must be supported by a "statement of adequate reasons and bases." 38 U.S.C. §7104(d)(1).

If the BVA doesn't provide that basic level of explanation, the Court cannot apply any of its other standards of review.

The BVA does not provide that basic level of explanation in 70-80% of its decisions.

This is dangerous - and the one part of the broken VA system that doesn't get talked about that much.

Only the BVA can make findings of fact. Only the BVA can explain its conclusions of law. Only the BVA can apply the law to the facts in a case. When the BVA fails to do that, the whole system grinds to a halt.

When BVA judges do not explain why they reached a certain conclusion, they are just jamming up the system.

The CAVC's hands are tied - they are an intermediate appellate reviewing court.

This means that it cannot make findings of fact that the BVA did not make. It can only review decisions the BVA made, and that review necessarily requires the existence of BVA reasoning to review.

If the BVA's reasoning is not present, not only is there nothing to review, but the Court cannot make a decision without making a finding of fact or applying law to fact.

By reviewing and adjudicating the facts and the law that the BVA chose to ignore, the Veterans Court would be exceeding the bounds of its jurisdiction.

So if a finding of fact or an application of law to fact is not reasoned, the CAVC must remand it to the BVA to provide that adequate reasoning.

And if 70-80% of a tribunal's decisions are remanded back to the BVA to re-adjudicate, then the BVA's backlog never goes away. It grows and grows.

One of the biggest criticisms of the CAVC is that it issues so many "reasons and bases" remands. Some of that criticism has real merit. If the CAVC would use its reversal power very selectively and target it directly on certain types of cases/issues, it could change the course of proceedings at the BVA, the quality of decisions, and the backlog.

But, in many cases, the CAVC is simply caught between Scylla and Charybdis: force a veteran back into the VA Hamster Wheel with a remand, or issue a decision that exceeds its jurisdiction.

The solution to the high volume of reasons and bases decisions from the CAVC is not entirely in the Court's hands, it is in the VA's and Congress's hands. If Congress passed a statute that required the VA to pay the higher of prevailing market rate for attorneys fees or attorney fees under EAJA when the Court issues a "reasons and bases" remand, the quality of BVA decisions would improve almost overnight, because the VA would have a quantifiable metric of the cost of the BVA's inefficiency. Alternatively, the BVA could implement training for Veterans Law judges, review metrics based on quality and not quantity. The VA could also better train its raters in the law so that they can make better decisions (that is not a 'dig' on VA raters...these folks are in the impossible position of having to decide claims while management keeps them in the dark on changes in the law that are favorable to veterans)

2. Clear Error (factual applications)

When the CAVC is reviewing a finding of fact, it reviews the BVA's finding under the "clear error" standard, also described as the "clearly erroneous" standard of review.

Remember, first and foremost, that findings of fact must be justified by statements of adequate reasons and bases. So if the BVA finds a particular fact to be "true", it must explain its reasoning - it is not enough for the BVA to just state a conclusion.

The "clear error" symbol is really that simple: assuming that the BVA has adequately reasoned its conclusions of fact, then “[a] factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (internal quotation marks omitted); Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992).

You will usually see the "clearly erroneous" standard articulated as something like this, with citation to the 2 cases most commonly relied on: the first defines the standard (i.e., U.S. v. U.S Gypsum) and the second adopts that definition in the CAVC (i.e., Hersey).

The Court will usually explain that the "clearly erroneous" standard of review means that the CAVC cannot substitute its own interpretation of the facts, or its own preferred findings of fact, for the BVA's finding.

One word of caution: do not confuse the "clearly erroneous" standard of review in appeals to the Veterans Court with the "clear and unmistakable error" standard of the CUE claim. They are completely different concepts for completely different situations.

Here are some ways you know there is not a "clear error" in a finding of fact:

  1. If there are two permissible views of the evidence, the fact-finders choice between them is a function of their discretion and not a clear error.
  2. It's possible that even if a mistake of fact is committed the rest of the evidence before the appellate court does not convince it that there definitely was a mistake. (do not confuse this with Harmless Error - that's another doctrine for another day; this is more about the clarity of the error).
  3. With or without evidence in the record that presents a conflict of fact, the fact-finder's finding of fact has a plausible basis in the record. "Plausible basis" is a pretty basic level of believability. For example, reviewing all of the evidence surrounding the JFK assassination, there is a plausible basis for finding that Lee Harvey Oswald, acting alone, killed President Kennedy. There is an equally plausible basis that LBJ was working with the mafia and the CIA to assassinate President Kennedy. That's a pretty far spread of conclusions - proving the point that fact-finders have wide latitude in drawing inferences from a particular fact or facts.

Here are some things that are governed by the "clear error" standard of review at the CAVC:

Each of these things has a common denominator: they are the facts that control if, when and how much compensation your clients receive from the VA.

So, if the BVA makes a mistake, it is going to have to be a pretty big one to get your client the compensation that they deserve. It is your mission as an advocate to preserve the record for appeal, by ensuring that if the BVA makes a finding of fact other than what you want, the Court will be convinced that a definite mistake has been made.

So, as you prepare your BVA appeal for a hearing, or as you assemble your brief on appeal, it is critical that you step outside of your case and see it as a BVA judge might.

How might the BVA judge mess this up?

What are the more likely ways that the BVA might view this fact?

What's the weakest part of the facts of your case?

Identify those weak-spots (most likely adverse findings of fact, weaknesses in your presentation of fact, most likely BVA misinterpretations of fact) and determine what evidence you can add to pre-prove they are wrong.

This is the hardest standard of review to overcome at the CAVC, and the CAVC is the last time you will get a review of a finding of fact - the Federal Circuit lacks jurisdiction to review findings of fact. So, take the extra time to find as many weaknesses as you can in your presentation of fact, and be proactive in including additional evidence to address those weaknesses.

PRO TIP: Any time you find yourself saying "I just don't see how the BVA can decide any other way," be sure to have 2 or 3 other folks look at your case to find these weaknesses. It is those cases that we believe in so strongly that often leave a tremendous opportunity for the BVA to make a mistake of fact that does not rise to the level of clear error.

3. Abuse of Discretion (law to fact applications)

When an appellate court reviews the lower tribunal's application of law to fact, it must afford great deference to the decision. The same is true when the CAVC reviews the BVA.

To demonstrate BVA error in an application of the law to the facts of a veteran's appeal, the CAVC attorney must show that the BVA abused its discretion.

There are several ways the BVA - or any lower tribunal - can abuse its discretion. Here are 5 more common ways.

a. BVA decision is arbitrary, capricious:

Attorneys and courts often lump "arbitrary and capricious" together - if you read appellate briefs even in other practice areas of the law, you will see that attorneys and judges tend to smoosh these two distinct concepts into one.

Arbitrary has a very specific meaning. In the context of a legal decision, it refers to one that is based on random choice or personal whim, rather than any reason or system.

A BVA decision that is capricious is one that is based on a sudden and unaccountable change.

Consider the VA regulation 38 C.F.R. §20.1304.

That regulation allows the BVA to give veterans a pre-decisional 90-day evidence submission period. It also gives the right to cut short that 90-days by issuing the decision. Should the BVA do so, irrespective of whether the regulation is lawful or not, it is acting in a capricious manner.

Other scenarios that are 'arbitrary or capricious' include those where the BVA has not provided a rational connection between the facts found and a choice made, the BVA does not provide adequate reasoning for its choice between two permissible views of the evidence of record, or, the BVA decision is not premised on a rational basis or supported by "appropriate, relevant and properly articulated factors." Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990).

b. Decision is not in accordance with the law.

When the BVA chooses to apply a particular law to an appeal, it is not in accordance with the law when:

  • another law applies
  • a statute or regulation requires a different consideration or outcome
  • the decision is inconsistent with the US Constitution,
  • it acts contrary to a binding precedent of the CAVC, the Federal Circuit, or the US Supreme Court

c. A clearly erroneous assessment of law or fact is an abuse of discretion

The U.S. Supreme Court has held that a tribunal necessarily abuses its discretion if it makes a clearly erroneous assessment of the law, or a clearly erroneous assessment of the facts. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)

4. De Novo (interpretations of law)

When the CAVC is asked to review only the BVA's interpretation of law, it reviews the BVA's decision de novo. Butts v. Brown, 5 Vet.App. 532 (1993) (en banc).

This standard of review is the most favorable to appellants, generally speaking, because the Court will not give any deference to the BVA's interpretation of law.

This commonly comes into place when the BVA interprets a statute, a regulation, or a rule of law in the form of judicial precedent or common law. These aren't the only scenarios, but they are the big ones we see in reviewing BVA decisions.

Statutory and regulatory interpretations are among the most fascinating types of cases at the Veterans Court and the Federal Circuit; they are also among the most difficult. And that's even with the easiest standard of review - the de novo standard of review is the least deferential to the BVA.

If you believe that the BVA improperly interpreted a statute, law, rule or regulation while deciding your VA claim or appeal, please contact the law firm of Attig | Curran | Steel for a case review or consultation.