Established by Congress in 1988, the United States Court of Appeals for Veterans Claims (CAVC) serves as an essential guardian of Veterans’ rights. Its main goal is to ensure that the Department of Veterans Affairs (VA) complies with all applicable laws and regulations in its decisions regarding disability benefits claims. Because the CAVC is not part of the VA, it provides a path for recourse beyond the VA system, enabling claimants to challenge VA decisions that deny them benefits.
Filing an Appeal with the Court of Appeals for Veterans Claims
When a Veteran, or another eligible claimant, such as a surviving spouse or dependent child, receives a decision from the Board of Veterans’ Appeals that they disagree with, they have the option of seeking judicial review from the CAVC. This means that they can challenge the Board’s findings and have the Court determine whether the Board followed the law when denying their claim. Once an appeal is filed at the Court, it becomes a federal case outside the Department of Veterans Affairs jurisdiction. At the Court, the Veteran (or other eligible claimant) becomes the Appellant, and the Secretary of Veterans Affairs becomes the Appellee.
Below is a step-by-step guide to the process at the CAVC.
Filing the Appeal
In order to appeal the Board’s decision, the Veteran (or other eligible claimant) must
(1) file a written Notice of Appeal with the Clerk of the Court within 120 days of the date the BVA decision was mailed (the date stamped on the front of the Board’s decision is considered to be the date it was mailed); and
(2) pay a $50 nonrefundable filing fee or complete a Declaration of Financial Hardship
The 120-day timeframe is crucial, as failure to file within this period may result in the forfeiture of the right to appeal the decision to the CAVC.
Information regarding what has to be included in the Notice of Appeal, how and where to submit the appeal, and even the forms that are needed can be found on the Court’s website: US Court of Appeals for Veterans Claims – How to Appeal a BVA Decision.
Notification and Docketing
Once the Notice of Appeal is filed, the case will be entered into the Court’s docket, and a Notice of Docketing will be sent to all parties, signaling the formal initiation of the appeal process.
Filing of the BVA Decision
VA will be required to submit a copy of the Board’s decision within 30 days of the Notice of Docketing.
VA’s Representation
VA’s Office of General Counsel (OGC) will designate an attorney to represent the Secretary of Veterans Affairs) during the appeal process. This attorney will submit their appearance to the Court and will be in charge of responding to the Court’s orders throughout the appeal.
Record Before the Agency (RBA)
The VA must give the Appellant or their representative a copy of the complete claims file, called the Record Before the Agency (RBA). This includes all relevant documents considered by the BVA in its decisions. VA is required to provide the RBA within 60 days after the Notice of Docketing by the Court.
The Appellant is then allowed time to review the RBA to ensure that the documents in it are legible and that all of the documents that would be expected to be in the RBA are actually there. For example, copies of the prior decisions in the case.
If anything is missing from the record or if there are documents that cannot be read, the Appellant can dispute the RBA, which simply means that the claimant can notify the Court that there is a problem with the RBA and ask VA to correct that problem.
Notice to File Brief
Once the time period to review the RBA has elapsed, the Court will issue a Notice to File a Brief. The Appellant (the veteran or other eligible claimant) will be given 60-days from the date of that notice to prepare and file their opening brief. This notice includes instructions on how to prepare the brief, how long the brief can be, and where to send the brief.
As part of this notice, the Appellant is also given the option of participating in a special program that allows unrepresented individuals to participate in the Court’s briefing conference process. If the Appellant elects to participate in this special program, an attorney will be assigned to the case (free of charge) for the limited purpose of participating in a Court-mediated briefing conference. Below is information regarding the Briefing Conference process.
Appellants are not required to participate in this program, but briefing conferences do often result in an early favorable outcome in cases, so it can be beneficial. If the conference does not result in a favorable outcome, the Attorney will withdraw from the case (unless the Attorney and the Veteran agree otherwise), and the process will continue like it normally would.
Briefing Conference
As noted above, briefing conferences are only available to individuals that are represented by an attorney or those that have chosen to participate in the Court’s special program.
The briefing conference consists of a phone call between the Attorney representing the Appellant (the Veteran or other eligible claimant), the Attorney representing the VA, and an Attorney from the Court who is there to mediate the conversation. The goal of the conference is to enable a discussion between the Appellant’s attorney and the VA attorney in order to determine whether the issues on appeal can be resolved without having to go to a Judge.
During the briefing conference, the VA attorney will either (1) explain why VA is planning on defending the case (meaning that VA does not agree that the Board made any errors in denying the claim(s)); or (2) offer to remand one or more of the claims that were denied by the Board.
If the VA Attorney offers a remand, the Appellant will have the opportunity to decide whether he/she wants to accept the remand or continue through the briefing process.
Proceeding to Briefing
If any of the issues remain unresolved during the briefing conference (and the Appellant wants to continue to pursue those issues), or if an unrepresented individual decides not to participate in the Court’s special program, the case will advance to the formal briefing stage. Both parties will prepare briefs, which contain detailed written arguments, and submit them to the Court. Each brief must comply with the Court’s timelines. First, the Appellant will file a brief, then the Attorney for the VA will respond with their own brief, and finally, the Appellant will have the opportunity to file a final response to the VA Attorney’s brief.
Court Decision Process
After receiving all necessary records and briefs, the Court will assign the case to a Court of Appeals judge. This judge will review the documentation and arguments before making a decision.
The Court’s decision may result in one of three outcomes:
- The Court can affirm the Board’s decision, which means that the Court did not find any errors in the Board’s decision and the claims will remain denied.
- The Court can vacate all or part of the Board’s decision and remand the case back to the BVA for further action, or
- In rare cases, the Court can reverse the decision, which instructs the BVA to change a finding or grant the requested benefit.
Contact Veterans Benefit Group of Goodman Allen Donnelly To Learn More
To learn more about the appeals process with the CAVC, contact the Veterans Benefit Group of Goodman Allen Donnelly today.
