4 Reasons to Appeal to the CAVC vs. Supplemental Claim Lane
During the appeals process, veterans may have the option to appeal to the Court of Appeals for Veterans Claims (CAVC) or use the Supplemental Claim Lane in the Appeals Modernization Act (AMA) system. Below are four reasons why veterans should consider appealing to the CAVC vs. Supplemental Claim Lane.
Overview of BVA Appeal Options
Veterans in the AMA system have several options when it comes to appealing an unfavorable VA decision.
Appealing to the Board
The Board of Veterans’ Appeals (BVA or Board) is the appellate body of the United States Department of Veterans Affairs (VA). This means it has the ability to overrule a decision made by a VA regional office.
In the AMA system, veterans have three options for appealing a decision from VA. They can choose the Supplemental Claim lane, Higher Level Review lane, or the Notice of Disagreement lane (i.e., appeal to the Board).
The Board is not bound by the decision made at the regional level. Essentially, this means that the Board can overrule a decision that a Regional Office made.
You Receive a Board Denial…Now What?
The Board is the last word from VA on your claim. This means that, in order to appeal a BVA decision, you can either appeal to the CAVC, which is not part of VA, or file a supplemental claim using new and relevant evidence.
How to Appeal to the CAVC
The Court of Appeals for Veterans Claims (also known as the CAVC or the Court) is a federal appellate court located in Washington, D.C. that hears the appeals of claimants (i.e., veterans and their dependents) who were unsuccessful before the BVA. The CAVC retains exclusive jurisdiction to review all final BVA decisions.
Generally, the CAVC either affirms the Board’s decision or vacates the decision and remands the case back down to the Board.
In extremely rare cases, the Court can reverse a decision. This means it sends the case back to the Board with instructions, such as to grant service connection.
When the Court vacates a decision and remands the claim, it means that a legal error was found in the Board’s decision. In this situation, the Board must re-adjudicate the claim.
How to Appeal via the Supplemental Claim Lane
A VA supplemental claim is a claim for disability benefits filed by a claimant who had previously filed for the same or similar benefits on the same or similar basis. VA is required to re-adjudicate the claim if new and relevant evidence is presented.
What is New and Relevant Evidence?
According to VA, new and relevant evidence “must raise a reasonable possibility of substantiating your claim” and cannot be “repetitive or cumulative of the evidence [VA] had when it decided on your claim.” Essentially, this means that the evidence needs to not have been previously submitted to VA.
For example, new and relevant evidence could be new medical evidence or lay evidence relevant to the purpose of the claim.
How to file a Supplemental Claim Lane Appeal
Importantly, claimants need to file within one year of a decision to preserve the effective date. Veterans can file a supplemental claim following adjudicative action including rating decisions, Board decisions, or CAVC decisions.
Specifically, the Supplemental Claim Lane is one of three options for veterans looking to appeal a decision under the AMA system.
Veterans are required to submit VA Form 20-0995, Decision Review Request: Supplemental Claim when initiating a supplemental claim for disability compensation. There is no limit on the number of supplemental claims a veteran can submit.
Which Appeal Option Should I Choose?
Depending on your situation and the specifics of your case, one appeal option may be better than the other. However, appealing to the CAVC is generally the best, most efficient choice for veterans. Here are four reasons why:
You Get Your Day in Court
By filing an appeal with the CAVC, the veteran (i.e., the appellant) is essentially taking legal action against the Secretary of the U.S. Department of Veterans Affairs (i.e., the appellee).
Once the case transfers to the CAVC it becomes a federal case, meaning it is separate from and no longer under VA’s jurisdiction. This also means it operates differently from VA.
The Court can view the case objectively and is better positioned to evaluate the arguments made by each party.
No Need to Gather Extra Evidence
The Court reviews a closed record, meaning that claimants cannot submit new evidence on the record for their appeal.
This means that veterans are not required to gather and submit additional evidence to prove their case. Instead, the Court reviews evidence already submitted and determines how it may have been used incorrectly by VA.
This can lessen the burden on veterans since they do not have to find new and relevant evidence.
Option For Review by Multiple Judges
Decisions from the Court mostly come from a single judge. However, there are certain situations in which more than one judge may be involved. Complex or precedential cases, for example, are more likely to be considered by multiple judges.
Claimants who disagree with their CAVC decision have a few options for next steps. They can request a motion for reconsideration, essentially asking the judge to reevaluate their decision.
Claimants can also request a panel decision. Those with cases initially decided by a single judge can request that a panel of judges decide the case.
Individuals with cases that have been decided by a panel of three or four judges can request that the whole court come to a decision, referred to as en banc (i.e., French for ‘on the bench’).
No Cost to Veterans
At CCK, veterans do not pay attorney fees for successful appeals (remands) before the Court. These fees are covered by the Equal Access to Justice Act (EAJA). EAJA is a federal law that allows individuals, small businesses, and public interest groups to obtain representation before the federal government at no cost in the event the group or individual is successful.
Additionally, Court fees do not affect a veteran’s back pay, or the retroactive award of benefits VA owes the veteran from the effective date of their claim.
This differs from BVA appeals in that when a Board appeal is successful, the veteran’s attorney receives a contingency fee based on retroactive benefits recovered. This means that if a claimant is awarded retroactive benefits, based on eligibility stemming from a previous date in time, then the veteran’s advocate would receive a percentage of those retroactive benefits.
How an Accredited Representative Can Help
Having an accredited representative on your side can be extremely beneficial in both CAVC cases and Supplemental Claim Lane appeals.
The process of appealing to the CAVC can be difficult to navigate. Therefore, it is most often in veterans’ best interest to enlist the help of representation. At CCK, our Court attorneys are actively involved in the appeals process. We will make sure all appeal deadlines are met, develop the strongest legal argument, and see your appeal all the way through the CAVC process.
With appeals in the Supplemental Claim Lane, our veterans’ advocates have the skills and background to help gather new and relevant evidence, and craft persuasive arguments to support your appeal.
If you need the help of an accredited representative for your CAVC or Supplemental Claim Lane appeal, reach out to Chisholm Chisholm & Kilpatrick today for a free case review.
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