Excerpted From: Evan R. Seamone, Disability Compensation for the Psychological Impact of Race Discrimination: Lessons from the Board of Veterans' Appeals, 74 Administrative Law Review 309 (Spring, 2022) (241 Footnotes) (Full Document)


EvanRSeamoneThe issue of police brutality against Black people, particularly officers' use of deadly force, has brought systemic racial discrimination to the forefront through public, often painful, dialogue regarding the need for reform. These ongoing and controversial discussions have touched upon the issue of reparations as one way of addressing the long-term, intergenerational effects of prejudice to include the psychic toll of being treated in a stigmatizing way. One of numerous considerations in the larger discussion is the task of measuring the psychological damage that has resulted from racial discrimination in various forms. After centuries, our nation has yet to develop a uniform or practical way to assess the injuries caused by discrimination.

In both the courts and public discourse, the sticking point appears to be the severity of the discriminatory treatment. Standards for assessing racial harassment across judicial forums have tended to require prolonged, extreme, and outrageous treatment to the point where verbal abuse and slurs are considered to be a predictable consequence of life. Psychiatry has reinforced this view in defining traumatic events in a manner that has traditionally included a form of life-threat in the diagnosis of “trauma.” Notably, the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) has reconceptualized Posttraumatic Stress Disorder (PTSD) as a “Trauma and Stressor-Related Disorder,” and limited the qualifying traumatic events to “actual or threatened death, serious injury, or sexual violence.”

Administrative tribunals face the same challenges as traditional courts of general jurisdiction in adjudicating racial discrimination claims. However, the nature of “mass adjudication” adds complexity to the issue. More specifically, because administrative tribunals are under pressure to generate written decisions at a rate far greater than traditional courts, there is greater likelihood of abbreviated summaries that do not fully explain the evidence considered and the courts' rationale for decisions. In the context of Equal Employment Opportunity Commission administrative decisions regarding racial discrimination claims, for example, researchers have observed that these most frequently filed discrimination claims “have the lowest rate of success, with just fifteen percent [15%] receiving some form of relief.” Most cases were closed “without concluding whether discrimination occurred.” Scholars have further traced the problems inherent in the adjudication of Title VII discrimination claims to workers' compensation cases, with an overarching conclusion that these forums--in addition to traditional courts that decide tort claims--are inadequate for addressing discriminatory injury due to the absence of clear standards and embedded skepticism of such claims.

This Article examines racial discrimination in a new context--the adjudication of claims filed by military veterans who attribute mental health conditions to discriminatory events during their prior military service. Although the military represents a very small microcosm of the American population, estimated to be 7% overall, with less than 1% actively serving at any given time, the institution has been rife with discrimination since its inception. The Armed Forces segregated servicemembers by race until the 1950s and then experienced a racial war “within a war” during the Vietnam era. Today, even after instituting numerous measures and programs to eliminate racism in the ranks, secretaries of defense and military leaders have admitted to the persistence of systemic racial discrimination. In the military context, discriminatory stress compounds other existing sources of stress that already create unique risks for developing mental health disorders, such as PTSD from combat and the stress of being separated from family members for frequent and extended periods of time.

Given the Department of Veterans Affairs' (VAs') broad mandate to compensate for a mental health condition that was caused or aggravated by military service, and for specific regulations covering compensation for the personal assault or harassment of another servicemember or persons other than enemy forces, the VA appears to be an administrative forum ideally suited to evaluate the nature of and adjudication over racial discrimination claims. In fact, the requirement for consideration of a veteran's mental health status prior to, during, and after military service, would appear to provide significantly more evidence for assessing the etiology of discriminatory harm than any other adjudicatory forum. Despite the recent recognition of the VA agency courts (the Board of Veterans' Appeals (BVA)) as ideal for drawing lessons of broader applicability to mass adjudication and administrative law contexts, no independent researchers have examined race discrimination in the VA context. Nor has the VA conducted any publicly accessible research or publicly tracked these types of cases.

This Article is the first to explore the question of how the VA's administrative court adjudicates racial discrimination cases with the goal of identifying any lessons that transcend the VA context and inform other administrative courts. Part II provides additional background on the VA's compensation standards for service-connection of mental health disorders and the function and operation of the BVA. Part III then outlines the artificial intelligence methodology I adopted using Natural Language Processing and supervised Machine Learning (ML) to identify and classify discrimination cases within a repository of over one million administrative appellate decisions.

Part IV presents the descriptive and quantitative results of the study, including the associations between various case characteristics and the judicial outcomes. Finally, Part V distinguishes findings that will improve adjudication of VA discrimination cases from three overarching findings that are connected to the broader adjudication of discrimination claims in other administrative forums. An overarching recommendation urges courts to conduct a “demographic inquiry” in all cases where discrimination is alleged to ensure greater transparency of racial factors considered by the court and trends in adjudication by individual judges and judges overall.

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This Article identified 535 BVA opinions that reached a final outcome on claims involving the psychological impact of race discrimination. The data offer some preliminary lessons for those who practice in the VA administrative forums, including but not limited to: the imperative for the VA to collect, analyze, and make available data regarding racial discrimination claims at all levels--from the ROs to the BVA; the tremendous value of creating a clearinghouse of verified records of military discrimination to assist veterans in corroborating their traumatic stressors; and the unmatched benefit of summarizing discrimination case facts and outcomes by issue, much like jury verdict reporters to help practitioners better identify potential issues that are similar to their current clients' cases.

Beyond these VA-specific findings, the Article also highlights three lessons of general applicability across administrative fora. First, to the extent possible, advocates and judges should request that mental health evaluators incorporate objective, peer-reviewed measures for assessing the impact of racial discrimination in their assessments of alleged discriminatory injuries. While, in practice, examiners may use widely divergent standards to assess mental conditions, principles adopted by the American Psychological Association and other professional associations encourage the use of objective assessments in forensic examinations that represent the present state of knowledge within the profession.

Specifically, because racial discriminatory trauma has been identified as a challenging area subject to many assumptions that lead to errors in diagnosis, there is even greater need in these cases to conduct a careful and detailed analysis. The notion that discrimination, by definition, cannot constitute a stressor event for a PTSD diagnosis under Criterion A is insufficient as a medical conclusion if the examiner does not justify this conclusion with a fact-based rationale tailored to the individual under examination. Although in many areas the conclusion could be true, researchers recognize that some scenarios would meet the criteria. A number of cases explain why discrimination, including non-physical discrimination, may nevertheless meet the threshold in an individual case. Moreover, researchers have established that discrimination can result in anticipated death, physical injury, or sexual violence based upon the context of the racial discrimination and the past experiences of the traumatized individual. Some of the peer-reviewed and validated measures to assess the impact of race discrimination include the Race-Based Traumatic Stress Symptom Scale, the UConn Racial/Ethnic Stress & Trauma Survey, the Race-Related Events Scale, the Workplace Prejudice/Discrimination Inventory, and the Perceived Ethnic Discrimination Questionnaire. At least one measure, the Race-Related Stressor Scale for Asian-American Vietnam Veterans, assesses the impact of military discrimination. Shockingly, however, not a single VA race discrimination case in this study referenced any of these vital measures. This result was not unique to race discrimination, as none of the 118 sexual-orientation and gender identity discrimination cases referenced or incorporated similar measures developed to assess the impact of discrimination against LGBTQ people.

The second lesson of broad applicability to administrative fora is the recognition that racial discrimination can result in other mental health disorders besides PTSD. The more common disorders of major depression and generalized anxiety disorders, which were successfully attributed to racial discrimination in BVA decisions, are far less burdensome to establish under the DSM-5 given that these disorders do not require a causal event of sufficient “traumatic” magnitude like PTSD's Criterion A. While this finding does not lessen in any way the experience of discrimination as personally traumatic, it highlights the importance of seeking evaluation for other mental health injuries in addition to PTSD and asserting additional conditions supported by such assessment.

The third lesson of general applicability to administrative tribunals relates to the language used by the court to describe the party and the events in cases involving race discrimination. As noted in the results section above, insufficient detail on the nature of the discrimination in the opinions forced me to exclude over two dozen cases from the statistical analysis. Although the cases referenced “discrimination,” “prejudice,” “harassment,” and even “harassment and discrimination,” they did not describe the kind of discrimination experienced. One judge's use of the term “without getting into the vulgar details” in a discrimination case signaled that judges may have employed vagueness to prevent further identification of the underlying discriminatory acts. Although not excluded from the analysis, many of the cases I did include mentioned racial discrimination but nevertheless omitted the claimant's race.

I have suggested several reasons why judges may have sanitized the content of discrimination cases. However, in all instances, the missing information prevents the type of transparency and oversight that enables analysis of judicial behavior and the detection of deliberate or subconscious bias in adjudication. Commissions and task forces that have investigated bias in judicial decisionmaking have identified best practices for identifying trends. One of the leading approaches is to measure case outcomes involving parties of different racial groups. In the 1990s, the then-General Accounting Office (GAO) employed a research methodology to identify the extent to which an applicant's race impacted disability awards for Social Security Disability and Supplemental Security Income adjudications. This research identified substantial disparities in awards at Administrative Law Judge adjudication stages, particularly when the appellant had an in-person appearance. The GAO's awards-by-race research led to the recurring priority to examine racial compensation trends with an eye toward mitigation efforts. More recently, bias task forces have mandated the collection, analysis, and publication of similar data on court outcomes specifically to address intra-judge, structural, and subconscious bias within the judicial system. The same authorities usually recommend using the courts' own internal resources for the analyses, such as offices responsible for conducting statistical analysis.

Although any analysis is better than none, my research suggests that greater transparency is needed much more than aggregate statistical results for data that may not be available to the public in its raw form. Recent litigation against the VA highlights the difficulty of obtaining race data for benefits awards, pursuant to the Freedom of Information Act, to the extent that the collected data even exist. The Black Veterans Project and the National Veterans Council for Legal Redress have alleged in lawsuits that the agency has ignored their requests, especially for statistics from the BVA level. To eliminate similar difficulties, I recommend the collection and publication of certain demographic information in all written decisions, including the race of the claimant/appellant.

Specifically, within the VA and any other forum that adjudicates claims relating to racial discrimination, I recommend a “demographic inquiry,” which requires all adjudicators to provide and publish the following information in their written decisions:

1. The self-identified race and gender of the claimant;

2. The self-identified race and gender of the adjudicator;

3. The number of alleged discriminatory events and corresponding dates of the events in question;

4. The perceived race and gender of the perpetrator for each corresponding discriminatory event; and

5. The specific victimizing acts involved in each discriminatory event.

Identifying and publishing these demographic facts would enable a better understanding of the nature of discriminatory acts alleged in cases and provide important insight of the success rates and status of discrimination cases in different fora. More importantly, collection and publication of this information would monumentally expand the arsenal of tools to detect and mitigate bias in judicial decisionmaking. It goes without saying that “What gets measured gets managed.” Beyond providing greater support for the reasons and bases underlying judicial decisions, the demographic inquiry can assist in preventing the courts from unintentionally perpetuating the discrimination that formed the basis of the allegation.

Evan R. Seamone, LP.D., LL.M., J.D., is an attorney who specializes in veterans' benefits law and the responsiveness of legal systems to veterans and their families.