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Veterans Law

Representation at the Court of Appeals for Veterans Claims (CAVC)

December 27, 2019
Lady justice symbolizing representation in court

What is the Court of Appeals for Veterans Claims (CAVC)?

The United States Court of Appeals for Veterans Claims (CAVC) is a federal court in Washington, D.C. dedicated to deciding 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 independent Court with exclusive jurisdiction over VA.  Therefore, these two systems operate differently.  Specifically, when a claim is pending before the VA, it will assist veterans in the development of their claim(s) for benefits, instead of working against the veteran to disprove the claim(s).  This reflects the non-adversarial nature of the VA disability claims process.  However, when the case is before the CAVC, VA will have an attorney defending the agency’s position and opposing the veteran’s position.

Judges at the CAVC are appointed by the President of the United States and must be confirmed by the Senate.  Cases may be decided by a single judge or by a panel of judges.  These judges rule on all types of benefits issues, including disability compensation, educational assistance, survivors benefits, and pension benefits.  The judges usually serve for a term of 15 years.  Currently, the Court has seven, permanent, active judges and a number of retired judges that it can recall to service.

How to Appeal to the CAVC

When veterans disagree with a decision from the Board in the legacy appeals system, their only option is to appeal to the CAVC within 120 days, otherwise they will lose their effective date.  If they miss this appeal deadline, they will likely have to file a supplemental claim, which will result in a new effective date.

Under the Appeals Modernization Act (AMA), if veterans receive an unfavorable decision from the Board, they have two main options:

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

Under AMA, the process of appealing to the CAVC will be the same as it is in the legacy appeals system.  Once the Board issues a decision, veterans 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 and include information such as their name, address, telephone number, email address, VA claims file number, date of birth, and date of the Board decision.  The Notice of Appeal can be mailed, faxed, or emailed to the Court using the contact information below:

Clerk of the Court
United States Court of Appeals for Veterans Claims
625 Indiana Avenue NW, Suite 900
Washington DC, 2004-2950
Fax: (202) 501-5848

Email: esubmission@uscourts.cavc.gov

The Court will then place the veteran’s case on the docket (i.e. the Court’s record and scheduling of proceedings), and issue a Notice of Docketing to all parties involved.  VA will then have to provide the veteran with a copy of their complete file, known as the Record Before the Agency (RBA).  Importantly, the CAVC reviews a closed record, meaning that claimants cannot submit new evidence into the record at this stage of the process.  From there, the Court will issue a 60-day Notice to File Brief in which claimants or their representatives can list arguments as to why the Board’s decision contained a legal error.  Typically, three briefs go to a judge at the CAVC: (1) the claimant’s opening brief (as mentioned above); (2) the Office of General Counsel’s response; and (3) the claimant’s reply brief to counter the arguments made by the General Counsel.

Veterans do not have to attend a hearing with the Court of Appeals for Veterans Claims in order to have their case decided.  Most cases are decided based on the paper submissions (i.e. briefs) sent to the Court.  In certain cases, the Court will schedule an oral argument in which both the veteran’s representative will and an Office of General Counsel representative will appear before the judge(s).

Do Veterans Need Representation to Appeal to the CAVC?

While veterans have the right to file an appeal with the CAVC on their own, or “pro se”, it is ill-advised.  The process of appealing to the CAVC can be very 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.  Specifically, we will file an appeal in a timely manner and review your RBA in order to develop the strongest legal argument.  Furthermore, CCK’s attorneys will participate in a telephone conference on your behalf with VA’s representation, if necessary, for your case.  During this conference, we will try to resolve the issue(s) and get the Board’s decision reversed or vacated.  If this resolution takes place, both parties will enter into what is called a Joint Motion for Remand (JMR).  In the event of a JMR, the Board must re-adjudicate the veteran’s claim based on the terms of the remand.  If the issues in your case are not resolved at this time, CCK will submit the legal briefs on your behalf.

CCK Provides Pro Bono CAVC Representation

Veterans do not need to pay attorney fees for successful appeals before the CAVC.  These fees are covered by the Equal Access to Justice Act (EAJA) – 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.  Court fees do not affect a veteran’s back pay (i.e. the retroactive award of benefits VA owes the veteran from the effective date of their claim).

Therefore, EAJA allows for veterans to be represented by CCK’s attorneys in Court for free.  The attorneys only receive EAJA fees paid by the government if they are successful in the veteran’s case.