What is the Process in a Court of Appeals for Veterans Claims (CAVC) or Veterans Court Appeal?
What is the US Court of Veterans Claims (CAVC)?
The United States Court of Veterans Claims was established by Congress in 1988 to ensure VA follows all applicable laws when making decisions on disability benefits claims.
The CAVC allows veterans to appeal a denial of benefits outside of VA.
Specifically, the CAVC is a federal court located in Washington D.C., that has jurisdiction over decisions made by the Board of Veterans’ Appeals (BVA). The CAVC reviews Board decisions that claimants (appellants) have appealed and makes determinations using case files, written arguments (briefs) from both parties, and sometimes oral arguments.
The CAVC’s job is to determine whether the BVA understood the facts of the case and correctly applied the law when it denied your appeal.
One thing to remember is that you cannot give new evidence to the CAVC. The Court makes its decision, just like the Board, based on the record at the time of the Board decision. The Record Before the Agency, also known as the RBA or c-file, has all the documents that VA has that pertain to you and your claim. Typically, this includes your service records, VA exams, documents you have sent to VA, and other related documents or forms.
Who Makes Up the US Court of Veterans Claims (CAVC)?
Judges at the CAVC are appointed by the President of the United States and confirmed by the Senate. In other words, the judges are not VA judges and are not under the jurisdiction of VA. Cases are usually decided by a single judge or by a panel of judges. In certain situations, all active judges may rule on a decision (known as “en banc”).
Currently, the Court has 9, permanent, active judges, as well as a number of retired judges that the CAVC can recall to service. Judges serve for a term of 15 years.
What Will a Court Appeal Get Me?
In most cases, the outcome of the Court is what is known in legal terms as a remand. When a remand is issued, the case is essentially sent back to the Board of Veterans’ Appeals for re-adjudication, or reconsideration. There, the BVA will make a new decision based on the errors that have been identified by the judges at the CAVC.
In some instances, the Court may not agree with the veteran’s position. In this case, the judges might affirm the Board’s decision, leading to the Board’s denial of claim becoming final.
Occasionally, the Court may reverse a Board decision, ordering the Agency to grant benefits. However, this only happens in very rare occasions.
As such, it is important to understand that having your case be remanded back to the Board is a favorable result. In most instances, the Court’s role is to point out to VA what it did wrong in making its decision and what law it needs to follow the next time it takes up the decision. While the Court rarely grants benefits itself, a remand down to the BVA can often result in benefits because the Court is forcing VA to acknowledge it made a legal error in its original decision.
How Long Does the CAVC Process Take?
Unfortunately, the CAVC process timeline can vary greatly based on several factors. If veterans are able to obtain a PBC, or a pre-briefing conference remand, the process is likely to take about 6 to 8 months. This is usually one of the quickest timeframes in which these cases can be resolved.
If a case must go through the full briefing process, the timeline is likely to be closer to 12 to 18 months. However, this is only an average, meaning the actual timeframe could be more or less.
If the case goes to a panel of judges and will require an oral argument, it is most likely going to result in a precedential decision. These cases can take a bit longer, ranging from 18 months to 2 years.
If a precedential case arises that involves an issue similar to those raised in your case, sometimes VA or even your attorney could ask to “stay the case.” This essentially puts a pause on your cause until the precedential decision is made, meaning your case could be stayed for a year or more.
On average, the CAVC will come to a decision within 12-18 months, with some cases taking as long as two years.
Overview of the CAVC Process for Appeals
When a veteran disagrees with the BVA’s decision, they have the right to ask the Court to provide a judicial review. By filing an appeal, the veteran (or appellant) is essentially taking legal action against the Secretary of VA (or the appellee).
Once the case transfers to the CAVC, it is no longer at the VA and becomes a federal case.
The CAVC process generally proceeds as follows:
- Veteran (or their representative) files a Notice of Appeal (NOA) with the CAVC within 120 days of the BVA decision on the case.
- The Court will then notify all involved parties that the case is under appeal, place the case on the docket, and issue everyone a Notice of Docketing.
- Within 30 days of filing the appeal, a copy of the BVA’s decision will be filed with the Court.
- After that, an Office of General Counsel (OGC) will assign an attorney to represent VA and they will file an appearance.
- VA will then send the veteran/their representative a copy of their complete file referred to as the Record Before the Agency (RBA), after which the Court will issue a 60-day Notice to File Brief.
- Occurs within 60 days of the CAVC docket.
- For represented veterans, the Court will schedule a briefing conference and send the veteran’s advocate an order with the date and time of the initial conference.
- The goal of the briefing conference is to resolve the issues noted in the veteran’s appeal with a VA attorney quickly.
- If you have an attorney, they will represent your interests during this conversation.
- A member of the Court’s Central Legal Staff will moderate the conference.
- If the issues in the veteran’s case are not resolved at this conference, it will proceed to briefing.
- Briefs are written arguments provided to the Court that go through the briefing process and are subject to the timelines mentioned above.
- Once the Court has received all the records and briefs, it will assign your case to a Court of Appeals for Veterans Claims judge who will render a decision.
- Generally, the Court either affirms or vacates the Board’s decision and remands the case back down to the Board.
- In rare cases the Court can reverse a decision, meaning it sends the case back to the Board with instructions to change a finding or grant the benefit.
What if I Disagree with the Court’s Decision?
It is important to note that there are several options if the veteran does not agree with the Court’s decision and would like to continue their appeal.
- Motion for reconsideration
- Request a panel decision – case is decided by a panel of CAVC judges
- 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 ‘in the bench’)
- Bring case to the Federal Circuit Court of Appeals (next level in the federal system)
- To do this, a legal error must have occurred during the Court’s decision making.
Three Important Things to Keep in Mind About CAVC Appeals
As you head into an appeal with the Court, there are few things to keep in mind:
- The CAVC is located in Washington, DC, but neither you nor your attorney needs to travel to the Court to appeal your case. The CAVC can handle your case electronically.
- It is critical to thoroughly review your case file with your attorney, page by page, before submitting the DOR to the court. Missing records can cost you your case.
- Once your case reaches the Court of Appeals for Veterans Claims and leaves the VA’s jurisdiction, the case turns adversarial. This means that the VA no longer has a duty to help you develop evidence or support your claim. You are on your own and should seek a lawyer’s help if you have yet to do so.
Does it Cost Money to Appeal to the CAVC?
Currently, the CAVC requires a $50 fee for filing a Notice of Appeal or a petition for extraordinary relief. Importantly, veterans who cannot afford this fee can file a declaration of financial hardship.
At Chisholm Chisholm & Kilpatrick, appellants do not need to pay attorney fees for successful appeals (remands) before the CAVC. Fees are covered by the Equal Access to Justice Act (EAJA), which is a federal law that allows individuals, small business, 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 (the retroactive award of benefits VA owes the veteran from the effective date of their claim.
Do I Need an Attorney?
While veterans do not need a representative at the CAVC, it is highly recommended. When you proceed on your own, you go up against experienced attorneys employed by VA who are well-versed in the specifics of Veterans law.
It is important to remember that not all attorneys who represent veterans before the VA are qualified to handle cases at the CAVC level. Without a qualified attorney to identify the legal issues and arguments in your case, you can be at a significant disadvantage. As such, it can be in your best interest to seek representation as you navigate the CAVC process.
CCK’s Experienced Attorney Can Fight on Your Behalf
For a free consultation with a qualified veterans appeals attorney, call Chisholm Chisholm & Kilpatrick LTD today at 800-544-9144. We will review your case and determine if we may be able to assist you in getting your rightful benefits.
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