Denied by the BVA? Signs Your Case May Succeed at the CAVC

CCK Law: Our Vital Role in Veterans Law

The Board of Veterans’ Appeals (BVA) is the administrative appellate body of the Department of Veterans Affairs (VA), and as such, has the authority to adjudicate VA disability claims, either approving or denying them based on the evidence presented.

However, this does not mean a ruling from the BVA is necessarily final. If your claim was denied by the BVA, you still have the option to appeal to the Court of Appeals for Veterans Claims (CAVC) and potentially have the BVA’s decision either remanded or reversed.

In this article, you will learn about some of the most common red flags that indicate a BVA decision contains the types of errors that often lead to a successful CAVC appeal.

Key points of this article include:

• The CAVC reviews cases in which the BVA could be found to have made legal or procedural errors. Therefore, veterans looking to bring their case before the CAVC should focus on identifying procedural mistakes the BVA may have made when issuing their decision.
• Some prominent errors that can serve as legal grounds for a successful appeal to the CAVC include the BVA failing to properly consider lay evidence or incorrectly applying legal standards to the veteran’s claim.
• If a veteran wishes to appeal their case to the CAVC, they first must file a Notice of Appeal. This document must be submitted within 120 days of the BVA decision being issued.

When Should Veterans File Appeals to the CAVC?

If the Board of Veterans’ Appeals made a procedural or legal error when adjudicating a veteran’s disability claim, it could be grounds for the veteran to file an appeal to the CAVC.

Veterans should consider this course of action if the decision they received from the BVA was unfavorable and they can identify potential mistakes the BVA may have made during the decision-making process. If the veteran’s appeal to the CAVC is successful, the Court may remand the decision back to the BVA for reconsideration, or, rarely, even reverse the BVA’s decision and grant the veteran the benefits they applied for.

Some errors the BVA has been known to make include:

• The improper consideration of lay evidence
• Reliance on an inadequate Compensation & Pension (C&P) exam
• The application of incorrect legal standards to a veteran’s case
• And more

Veterans deciding to pursue an appeal to the CAVC should ask themselves whether they believe BVA made any mistakes pertaining to these, or other, legal areas when deciding on the veteran’s claim.

Looking to learn more about common errors made by the BVA? Watch CCK Law Partner Bradley Hennings explain which mistakes could lead to a successful CAVC appeal:

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Did the BVA Properly Consider Lay Evidence?

Lay evidence is the personal account of a veteran or their loved one testifying to the severity of the veteran’s disability. If the BVA did not give a veteran’s lay evidence proper consideration when composing its decision, it could be grounds for an appeal to the CAVC.

“So, one of the potential issues in a BVA decision is failure to properly discuss or address lay evidence,” says Bradley Hennings, partner at CCK Law and former veterans law judge. “The Board must analyze all favorable lay statements from the veteran or their caregivers, family, fellow service members, or friends.”

Some red flags that may indicate the Board did not adequately consider lay evidence include:

• The Board dismissing lay testimony as not competent without proper explanation.
• The Board failing to address the credibility or probative value of the veteran’s lay statements.
• The Board acknowledging the lay evidence but never explaining why it is accepting or rejecting it.

Should the BVA make one of the above mistakes or otherwise improperly disregard a veteran’s lay testimony, it is possible the CAVC will remand the decision back to the Board to have it reconsider the claim while taking the lay evidence into account.

Was an Adequate Compensation and Pension (C&P) Exam Performed?

If a veteran believes that the Compensation and Pension (C&P) exam they underwent was inadequate to assess their disability, it might be another pathway by which that veteran can make a successful appeal to the CAVC.

Some signs of a potentially inadequate C&P exam include:

• The examiner failing to review the veteran’s full medical or service history (especially in exams focused on establishing service connection).
• The examiner relying on incorrect facts or making assumptions contradicted by the record.
• The examiner not including a rationale or explanation for their assessment or including one that is perfunctory or conclusory.
• The exam itself failing to address concepts like functional loss, flare-ups, secondary service connection, or aggravation when they might be relevant to the claim.

“The examiner can’t just say, ‘Well, because I said so, because I’m a doctor or because I’m a medical professional.’ They have to actually provide some reasoning,” says Bradley Hennings. “If the board relies on such an exam to deny a claim, that’s a strong basis for appeal to the CAVC.”

Did the BVA Apply the Correct Legal Standards?

If the BVA uses the wrong legal standards when adjudicating a veteran’s case, it could provide the basis for the veteran to file an appeal to the CAVC.

Some examples of this incorrect BVA reasoning could include:

• The Board taking a categorical approach to requiring medical evidence in situations where lay evidence is actually legally sufficient.
• The Board applying too high of a legal standard for medical nexus opinions (i.e., mistakenly requiring medical certainty for a nexus opinion, when in reality “at least as likely as not” or in approximate balance should be sufficient).
• The Board misinterpreting statutory or regulatory requirements (e.g., for situations involving increased ratings or total disability based on individual unemployability).

In cases like these, where the BVA misstates or misapplies the law, it is not uncommon for the CAVC to declare a legal error and remand the case for a new decision.

What Are Some Other BVA Red Flags?

Some other procedural red flags that could form the basis of a CAVC appeal include:

• Failure of the Board to address all of the theories of entitlement (e.g., not considering theories like secondary or presumptive service connection).
• The Board ignoring favorable evidence like medical opinions or records, employer statements, or social security determinations.
• The Board providing inadequate statements of reasons or bases, including vague conclusions, unexplained findings, or missing discussion of key facts.
• The Board mistakenly finding that VA had satisfied its duty to assist when, in reality, VA had not. Duty to assist failures include things like missing service records, incomplete medical records, or failure to obtain relevant private treatment notes that the veteran has appropriately identified or provided.

Want an idea of what the CAVC appeals process looks like? Watch CCK Law Partner Christian McTarnaghan discuss the essentials of appealing to the CAVC:

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How Do I File an Appeal to the CAVC?

To file an appeal to the CAVC, veterans must complete and submit a Notice of Appeal (NOA) form within 120 days of the BVA issuing its decision. Veterans can submit this form using one of the following methods:

• Emailing it to [email protected] (for veterans who are representing themselves) or [email protected] (for veterans who are being represented by another person, such as an attorney); OR
• Faxing it to (202) 501-5848; OR
• Mailing it to the following address: Clerk, U.S. Court of Appeals for Veterans Claims, 625 Indiana Avenue, NW, Suite 900, Washington, DC 20004-2950

Veterans should also note that there is a $50 filing fee for this form. However, this fee can potentially be waived if a veteran submits Form 4a (Declaration of Financial Hardship) alongside or shortly after their NOA.

Want To Appeal to the CAVC? Contact CCK Law

If you are a veteran looking to appeal your disability claim to the CAVC, the dedicated team at Chisholm Chisholm & Kilpatrick may be able to help. Our VA-accredited attorneys have represented over 18,000 veterans and dependents before the CAVC.

Call CCK Law at 800-544-9144 or contact us online for a free case evaluation.

Frequently Asked Questions

How do you appeal a BVA decision?

If the Board of Veterans’ Appeals (BVA) ruled unfavorably against a veteran or their dependent, they have several options to appeal the Board’s decision, including:

• Appealing to the Court of Appeals for Veterans Claims (CAVC)
• Filing a supplemental claim with VA, which allows for the addition of new and relevant evidence to the case
• Appealing to the Board to reconsider its decision
• Appealing to the Board to vacate its decision and start the process anew
• Appealing to the Board to revise its decision based on a clear and unmistakable error

How long do you have to appeal to CAVC?

From the date of the Board of Veterans’ Appeals (BVA) decision being issued, veterans and dependents have 120 days to submit a Notice of Appeal (NOA) form to CAVC.

Per the form linked above, the CAVC may sometimes accept NOAs filed after 120 days, but this applies in limited circumstances only and veterans should make every effort to submit their form within the 120-day timeframe.

What are the common reasons for CAVC appeals?

Appeals to the CAVC typically center around a legal or procedural error that the Board of Veterans’ Appeals (BVA) made when adjudicating a VA disability claim.

Some BVA errors that could serve as grounds for an appeal to the CAVC include:

• Not properly considering a claim’s lay evidence
• Basing its reasoning on a Compensation and Pension (C&P) exam that was inadequately conducted
• Applying incorrect legal standards to a veteran’s claim
• Failing to consider all theories of entitlement for a veteran’s claim, including secondary and presumptive service connection
• Mistakenly determining that VA had satisfied its duty to assist the veteran’s claim when they actually did not

Can you appeal a CAVC decision?

Yes, it is possible to appeal a CAVC decision. Some of the options to do so include:

• Filing a motion of reconsideration with the Court.
• Requesting a panel decision to have three or four judges rule on the case. For veterans who already had a panel decide their case, they can request an en banc appeal, where the whole court convenes to rule on the case. However, this is usually quite rare.
• Bringing the case before the Federal Circuit Court of Appeals (a higher federal court) to rule on the case. However, this only becomes an option if the CAVC made some kind of error during its decision-making process.