Picking the Right VA Disability Lawyer for Your CAVC Appeal
If you are planning to file an appeal with the Court of Appeals for Veterans Claims (CAVC), you may be searching for an attorney to represent you. Read on for valuable tips on how to choose the right VA disability attorney to help with your CAVC appeal.
Court of Appeals for Veterans Claims (CAVC) Explained
The United States Court of Appeals for Veterans Claims is a federal appellate court that hears the appeals of claimants (i.e., veterans and their dependents) who were unsuccessful before the Board of Veterans’ Appeals.
Located in Washington, D.C., the CAVC was initially established by Congress in 1988 to ensure that the Department of Veterans Affairs (VA) follows all applicable laws when making decisions on veterans’ disability claims. CAVC judges are appointed by the U.S. President and confirmed by the Senate. Some cases may be decided by a single judge, while others can be decided by a panel of judges.
Importantly, the CAVC is not part of VA – it is an independent Court with exclusive jurisdiction over VA. Once a case transfers to the CAVC, it becomes a federal case. VA will appoint an attorney to defend the agency and argue against the veteran’s position.
How to Appeal to the CAVC
Veterans generally have 120 days to appeal to the CAVC following an unfavorable Board decision. To file an appeal, claimants must complete a Notice of Appeal with the Court. The CAVC then places the veteran’s case on the docket (i.e., the CAVC’s record and scheduling of proceedings), and issues a Notice of Docketing to all parties involved.
VA provides the veteran with a copy of their complete file, known as the Record Before the Agency (RBA). Importantly, the veteran can no longer submit evidence at this stage. From there, the Court will issue a 60-day Notice to File Brief in which claimants or their representatives can make their arguments.
Types of CAVC Outcomes
After reviewing the arguments and evidence, the CAVC will either affirm the Board’s denial or issue a remand (i.e., send the case back to the Board). If the CAVC sends the case back to the Board, it means it agrees with the veteran. At this point, the veteran can add new evidence to their case.
In some rare cases, the CAVC will reverse a Board decision. Here it will send the case back to the Board with instructions to change a finding or grant a benefit.
If the CAVC issues an unfavorable decision, there are several options to continue the appeal. Veterans can file a Motion for Reconsideration, request a panel decision (i.e., the case will be decided by a panel of judges instead of a single judge), or they can appeal the case to the Court of Appeals for the Federal Circuit. For this last option, a legal error must have occurred during the Court’s decision making.
Do Veterans Need Representation to Appeal to the CAVC?
No, veterans do not need an attorney to appeal to the CAVC. Veterans do have the right to file an appeal to the CAVC on their own, which is known as “pro se.” However, the process of appealing to the CAVC involves numerous steps, which can be confusing and overwhelming.
This process can be difficult to navigate without the knowledge and experience of a qualified veterans’ advocate. An experienced attorney can significantly increase your chances of winning your CAVC appeal and securing the VA benefits you deserve.
How Do I Choose the Right Attorney for My CAVC Appeal?
There are several things to look out for when choosing an attorney to represent you before the CAVC. Most importantly, veterans must choose someone who is admitted to practice before the Court.
Admittance to the Court can be achieved in two ways:
- An attorney who has passed the bar exam and is licensed to practice law in any state can apply to practice before the CAVC; or
- A non-attorney can practice under the supervision of a licensed attorney who is barred at the CAVC.
In addition to choosing an attorney who is admitted, it is also important to look at the representative’s level of experience and knowledge to determine if they are fully qualified to represent your case. It is beneficial if the representative has a proven history of securing favorable outcomes before the CAVC.
Questions to Ask a Potential VA Representative
If you are seeking an advocate to represent you at the CAVC, there are some key questions to help you ensure that a potential attorney is fully qualified and will act in your best interest.
Before selecting an attorney, consider asking the following questions:
- When were you admitted to practice before the Court?
- How long have you been practicing Veterans law?
- When did you last attend a Veterans law training?
- How many cases have you had at the CAVC?
- Have you ever argued a case at the CAVC?
- Have you played a role in any precedential decisions? (See this example of a precedential decision.)
- Do you practice at the Federal Circuit (i.e., the Court that oversees the CAVC)?
Do I Have to Keep the Same Representative Throughout the Entire Claims Process?
No, you do not need to keep the same representative throughout the entire claims process. Claimants can have two different VA disability attorneys over the course of their case. A claimant may have one representative who handled their case as it went through VA, and another to pursue their appeal at the CAVC.
Essentially, claimants are not obligated to use the same attorney they used at the agency level as their representative before the CAVC. For example, you may wish to hire a different representative if you believe your attorney does not have adequate experience to represent you at the CAVC or does not represent clients at the CAVC at all.
How Much Does a CAVC Attorney Cost?
At Chisholm Chisholm & Kilpatrick, claimants do not pay their advocates to represent them before the CAVC. 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. Importantly, EAJA fees do not affect a veteran’s back pay, meaning they do not detract from the retroactive award of benefits VA pays a veteran from their effective date.
If your advocate is successful in your case, the reasonable attorney’s fees are paid for by the government. However, if your appeal is unsuccessful, your representative will not be compensated by EAJA.
CCK Can Help with Your CAVC Appeal
The accredited attorneys at Chisholm Chisholm & Kilpatrick have decades of experience successfully representing veterans at the CAVC. If you need assistance with your CAVC appeal, we may be able to help you too. Call CCK today at 800-544-9144 to schedule your complimentary case review with a member of our team.
For more in-depth information about the CAVC process, you can also reference CCK’s free CAVC eBook.
