Appealing a Board Denial to the CAVC Under Appeals Reform

CCK Law: Our Vital Role in Veterans Law

What is the Court of Appeals for Veterans Claims?

The Court of Appeals for Veterans Claims (CAVC) is a federal court located in Washington, D.C. dedicated to hearing the appeals of claimants (i.e. veterans and their dependents) who have been unsuccessful in their cases before the Board of Veterans’ Appeals.  Importantly, the CAVC is not part of the Department of Veterans Affairs.  Rather, it is an entirely separate federal entity with jurisdiction over VA.  Therefore, these two systems operate differently.  Specifically, VA assists veterans in the development of their claim for benefits, instead of working against the veteran to disprove the claim.  This reflects the non-adversarial nature of the VA disability claims process.  However, when appealing to the CAVC, VA will have an attorney defending the agency’s position and opposing the veteran’s position.

How Do You File an Appeal to the CAVC Under Appeals Reform?

Under Appeals Reform, if you receive an unfavorable decision from the Board of Veterans’ Appeals, you have three options:

• Submit a supplemental claim with new and relevant evidence at the Regional Office level
• Appeal to the CAVC
• File a Motion for Reconsideration

Here, the process of appealing to the CAVC will be the same as in the current Legacy appeals system.  Once the Board issues a decision, claimants have 120 days to file an appeal to the CAVC or the decision becomes final.  To file an appeal, claimants must complete a Notice of Appeal with the Court, which includes both personal identifying information and details about the Board decision.  From here, the claimant will receive the Record Before the Agency (RBA).  The RBA consists of the claims file as it existed when the Board made its decision.  Similar to the higher-level review process, the CAVC operates on a closed record, meaning claimants cannot submit new evidence into the record at this stage of the process.

The claimant will typically submit arguments to the CAVC explaining why the Board’s decision was wrong, while VA will submit arguments defending the Board’s decision.  At this point claimants will have another opportunity to submit additional argument to counter VA’s response.  These arguments usually go to a single judge at the CAVC, but there are situations in which more than one judge may be involved in making the decision.

Filing a Motion for Reconsideration may be beneficial when the claimant believes that a really obvious error was made by the Board. Furthermore, when the claimant believes that pointing this error out to the Board will produce a new decision or different outcome in their case. The Board will decide whether the Motion should be granted or not. It is very rare for these motions to be granted. However, if a Motion for Reconsideration is allowed, a hearing on reconsideration will be granted only if the claimant had requested a Board hearing on their Notice of Disagreement.

Receiving a Decision from the CAVC Under Appeals Reform

If the CAVC affirms the Board’s decision, meaning your claim is further denied, you again have two options:

• Submit a supplemental claim with new and relevant evidence at the Regional Office level
• Appeal to the U.S. Court of Appeals for the Federal Circuit

If a claimant decides to submit a supplemental claim back at the Regional Office, he or she has one year from the date of the Court’s decision to do so.  On the other hand, if a claimant chooses to appeal to the Federal Circuit, he or she must do so within 60 days.  In regards to both Board denials and CAVC denials, Appeals Reform differs from the Legacy appeals system insofar as it offers the option to file a supplemental claim versus only having the options to appeal to the next highest court or file a motion for reconsideration.  However, it is important to note that claimants cannot request higher-level review of Board decisions or CAVC decisions.

If the CAVC remands the Board’s decision, meaning the Court agrees the Board made a legal error, then your case will be sent back to the Board for appropriate action.