CAVC Process and Timelines: Court of Appeals for Veterans Claims

Video Transcription

Christian McTarnaghan: Hi everybody, and welcome to another edition of CCK Live. Today, I’m joined by Kaitlyn Degnan and Kevin Medeiros, and we’re going to be breaking down the process of the current timeline of cases that go to the CAVC, or United States Court of Appeals for Veterans Claims.

So, we’re going to start off with broad strokes. What is the CAVC? So, it was a court that was established by Congress in 1988 to oversee VA decision-making and basically to ensure that VA is following the law.

So, practically what it allows is Veterans to leave the VA system, right? Because every single decision that you get at VA until you get to the Court is made by VA. The rating decision is made by VA. The final Board decision is a VA adjudicator. This lets you go outside of VA in order to try to challenge a denial of benefits.

So, it’s a federal court in Washington, D.C. that reviews final Board decisions, and claimants, appellants, veterans are allowed to appeal to that Court and we’ll get into a little bit more specificity about this later in the talk, but you can represent yourself, you can get a representative. But basically, the Court looks at your file. It looks at what is submitted to it, briefs, sometimes oral arguments, and it makes a decision in your case. Its job is to determine whether VA looked at the right facts and used the right law in adjudicating your case.

The only thing that I want to hit quickly on the outset before I turn it over to Kaitlyn and Kevin is that when you get to the CAVC, you cannot submit new evidence like you can at some points in the process at the VA. The Court looks just at what the Board looked at when it made its decision, which is your C-file, or referred to when you get to Court as a record before the agency. So, you can’t file a brief and staple a new medical examination to it or something like that. It’s just going to look at the record before the agency. So, that’s a little bit about the Court. That’s just scratching the surface about the process. So, Kaitlyn, you want to talk a little bit more specifically about who’s making these decisions at the CAVC.

Kaitlyn Degnan: So, when you have your case at the CAVC, those cases are decided by judges and these are independent judges. They’re not VA employees. They are appointed by the president of the United States and confirmed by the Senate. So, it’s not a VA employee who’s going to be making the decision here. It’s going to be an independent judge. Typically, cases are usually decided by a single judge, but sometimes they might also be decided by a panel of judges, which is three judges or all of the judges.

At this time, the court has nine permanent active judges and then a number of retired judges that help out and can be asked to come back and serve when necessary. And typically, these judges are going to serve for a term of 15 years. They will issue decisions on all kinds of benefits issues; so, disability compensation, educational assistance, survivor benefits, and pension benefits. Any decision by the Board of Veterans’ Appeals that is appealed to the Court, these judges are going to rule on them.

Christian: Right, and the distinction between these judges and the veteran’s law judges that are making the final Board decision is particularly important. There are different types of judges. It’s not a VA judge that’s deciding your Court appeal. So, one of the things we wanted to hit right off the bat, something that I would be thinking about if I were a veteran or a claimant watching this video is what’s the Court appeal going to get me? Kevin, do you want to get into a little bit about that?

Kevin Medeiros: Yeah, absolutely. And like you said, Christian, this is a big question for a lot of veterans. And in the overwhelming majority of cases, the outcome from the Court is known in legal terms as a remand. And that means the case is sent back to the Board for readjudication, reconsideration, for it to make a new decision based on the errors that have been identified by the parties, by the judge in the case, and the CAVC, for the Board to make a new decision that complies with the outcome of the Court appeal.

In some instances, if the Court does not agree with the veteran’s position, they might affirm the Board’s decision leading to the Board’s denial of the claim that’s being sought becoming final. And also on rare occasions, the Court might reverse a Board decision and order the agency to grant benefits, but those are very rare occasions. The overwhelming majority of the time like I said, the Court will identify legal errors that the Board made and send them back to the Board for a new decision that corrects the legal errors.

Christian: Right. One of the things that I like to make very clear to my clients, right from the outset is a favorable result, a really good result, is getting the case from the Court, back down to the Board, right? Because like you said Kevin, in the majority of cases that is the Court’s role. It’s to point out to the Board, the VA, what it did wrong and what law it needs to follow the next time it takes up the decision because in a very small percentage of cases, does the Court actually grant benefits. So, that’s just a really important thing to keep in mind when you’re thinking about the CAVC process.

So, that’s what you’re going to get. Obviously, that’s very general. But Kaitlyn, do you want to hit a little bit about the timeline before we sort of get into the A to Z — how the Court appeal works?

Kaitlyn: Of course. Unfortunately, the timeline of the process can vary based on a number of factors. So, if you go through the process and you’re able to obtain what’s called a PBC or a pre-briefing conference remand, that process is only going to take you about 6 to 8 months. And that’s usually the quickest that these cases can resolve. Alternatively, if the case has to go through the full briefing process, you’re looking at 12 to 18 months before we reach a decision from the Court and of course, that can vary, but on average will see about 12 to 18 months.

Another caveat to that is that if the case goes to a panel of judges and is going to have an oral argument, that’s going to result in a precedential decision most of the time and those can take quite a bit longer, 18 months, two years, depending on a number of factors.

And then, another exception to this is also stayed cases. So, if there is a case that is going to be precedential that involves an issue that is similar to what’s going on in your case, sometimes either VA or even your attorney could ask to what’s called stay the case. And it basically puts a pause on the case until that precedential decision is decided, and sometimes that can take quite some time. We’ve seen cases get stayed for a year or so, and you’re not going to get a resolution in that case until the case that is precedential is decided. But on average, the Court is going to come to a decision on a case within 12 to 18 months, but some cases can take as long as two years if those factors that I mentioned earlier are involved.

Christian: Well, you know, of course, that CCK as advocates, we try to get a decision as quickly as possible. But sometimes there’s only so much we can do to move the case along. So, we’re going to sort of take a little bit of a step back here. We’re going to talk about the process A to Z.

So, what would it look like if you went to Court, what would it look like if you got CCK as your representative in Court? So like we said, I’ll start this off and then I’ll pass it between Kaitlyn and Kevin because it’s a little bit of a long process and that’s the reason why it can take 12 to 18 months.

So, you get the Board decision in the mail hopefully, you look at the Board decision. You don’t like what it did. It denied your service connection. So, like we said, you have the right to appeal that denial to the United States Court of Appeals for Veterans Claims, to the CAVC. It’s not going to be a part of the VA anymore. You’re going to a specialized federal court where federal judges are going to, if it goes all the way to the briefing, make a decision in your case. It’s not up to VA and the Board, once it gets to the CAVC, what’s going to happen in your case. That’s basically what happens at every step before you get to the CAVC, but that’s not the case once you get to federal court.

So, the first thing that you’re going to have to do is you’re going to have to file a notice of appeal of that Board decision with the United States Court of Appeals for Veterans Claims within 120 days of the Board decision. So, that’s really important because there are always exceptions to every rule, but if you file it outside of the 120 day time period, you might have a hard time getting your case heard. So, 120 days, get your appeal filed.

So, the next thing that’s going to happen, this is sort of just going over the broad strokes. This is an action that the Court is going to take, which is a person who deals with all the court cases. They’re going to docket it, and what that means is your case is going to get on the CAVC website. It’s going to get on the Court’s case listing and they’re basically going to tell everyone, “Okay, your case has been docketed, and here’s what’s going to happen in the next steps.” So, basically, you already have your Board decision, right? You’ve already appealed your Board decision, but the first step is for the secretary to find it and then to put it on the docket, throw it on the docket. Within 30 days of filing that appeal, the VA has to give you, has to give the Court, the decision that you’re appealing.

Then, after that, the VA is going to choose an attorney from its Office of General Counsel to represent the secretary, to represent the government’s position in this case. So, that will be who you’re going against at the CAVC. Unlike VA where the process is not adversarial, right? And the VA is supposed to help you in developing your claim. Once you go to Federal court, it becomes an adversarial process and you’ll be going up against a VA attorney. So, Kevin do you want to pick it up from the next step in the process? The RBA?

Kevin: Yeah. Sure. So, at that point, the VA is attorney, is going to send, what Christian referred to earlier, is called the RBA, the record before the agency. It’s everything that’s been associated with a veteran’s file up until the Board has made its decision. And at that point, the record becomes closed and it’s referred to as the record before the agency. The Court will only be able to look and advocates will only be able to use what’s in the record before the agency at the time the Board made its decision.

So, after the veteran or their advocate has had a chance to take a look at the RBA and make sure everything is there, the Court will issue a 60-day notice to file a brief. And from that time, from the date that that notice to file brief has been issued, the veteran or the advocate will have 60 days to file a formal brief with the Court. But in situations where a veteran is represented by an attorney or another practitioner before the Court, the Court will schedule what’s called a pre-briefing conference, or PBC, that we’ve also mentioned previously.

That will allow the veteran’s attorney or representative and the VA’s attorney to get together with an attorney from the Court, who kind of acts as the moderator of the phone call and see if they can figure out a way to resolve the appeal without having to file a formal brief with the court and letting a judge decide the case which as we’ve spoken about, it can drag on the length of the appeal. So, the goal is to resolve the case hopefully at that stage during that phone call. And if not, then that is when the formal briefs are filed with the Court and a judge ultimately decides the case.

Christian: Right, so up until that PBC stage is what you were talking about Kaitlyn, it takes about six to eight months, right? So, if you aren’t able to come to an agreement with a VA attorney at the conference stage or sort of at that early stage. Then, it’s when we’re going to get into a process that may be going to take between 12 and 18 months, maybe a little bit longer. So, do you want to get into a little bit about how sort of the briefing process works at the CAVC?

Kaitlyn: Yeah. So, if you’re unable to resolve your case at the pre-briefing conference, then the case is going to go to brief. And one of the reasons why this process can be so lengthy is that everyone gets a set amount of time to do everything. So initially, the appellant is going to have either 60 days from a briefing order or 30 days after the PBC in order to file their brief. Appellants can ask for a 45-day extension. A lot of times, that’s really helpful in making sure that you’re thoroughly addressing your case. So, we usually like to plan, “Okay, that 45-day extension is going to happen.”

Then at that point, VA will have an opportunity to respond to your brief. They initially get 60 days to write that brief and they can also ask for 45 days of extension. And I think I speak for all of us when I say it’s our experience that they will take that extension in most cases. So, it’s a good idea to plan for that. And then, you get to file what’s called a reply brief, right? The appellant gets to have the last word in there and respond to whatever VA raised in their brief. Initially, you have 14 days to file that reply. But again, you do have a 45-day extension available to you, and a lot of times, it can be advisable to take that to make sure that you’re being very thorough in your arguments.

Once all of that has been completed, the case is going to get assigned to a judge and that judge is going to render a decision. And as Kevin mentioned earlier, the Court either affirms or vacates the Board’s decision and remands the case back down to the Board. And then again, in very rare cases the Court can reverse a decision, which means it’ll send the case back down to the Board with instructions to change a finding or grant, whatever the benefit is that is sought. But again, that is a very rare occurrence.

Christian: Right. So vacate would mean, the Court basically agrees that the Board made an error, erases the Board’s decision practically, not literally, and then sends it back down to VA for a new decision. Remand is like what Kevin explained, so I’ll just hit it quickly as a reminder. It’s going to go back to VA for them to correct their errors and issue a new decision.

Another thing that I like to make crystal clear to my clients is that getting it back to the Court is a great result because the alternative is if it’s affirmed, your denial is set in stone or the Court appeal isn’t going to lead to you getting another shot at it. But it doesn’t guarantee that you’re going to get benefits. But what it does is you get an order when you go to Court. A federal judge explains to the Board in painstaking detail exactly what it did wrong and what VA did wrong, and what it has to do now that it has the case back. And it gives a great road map for the Board to use hopefully when it takes the decision up again. So, one that we wanted to also note is, if you lose at the CAVC, if the CAVC affirms the Board’s decision, you’re not done. You have more options available to you to continue in trying to convince the Court or another court, I’ll get into that, that the Board made an error.

So, you can file what’s called a motion for recon at the Court. There you explain to the judge why you think that maybe there was something about the argument or the case that they didn’t fully look into or fully recognized from the pleadings and just take another look at it, reconsider your decision. See if you still, in light of what an advocate raises or a veteran raises, believe that the Board’s decision should be affirmed.

You can request panel consideration which asked the judge to see if maybe they have created a new ruling that maybe hasn’t been a part of the Court’s precedent before. Or takes a different position on a case that may be the precedent says that they shouldn’t do. So you ask for a panel, the judge will see if some of his or her colleagues agree that panel is necessary, and if they do, then like I think Kaitlyn you went over this quickly at the beginning, three judges or more are going to take up the case and they’re going to decide whether the Board decision should be affirmed or whether it’s something that should be remanded.

And then, in a very, very, very small percentage of cases, you can appeal a CAVC case to the Federal Circuit, which is the court that has jurisdiction to oversee the United States Court of Appeals for Veterans Claims but that’s pure legal errors only. The Federal Circuit doesn’t deal in facts. It’s a very difficult court to practice in front of and it’s a very small percentage of cases that are even filed and even fewer are successful at the CAVC. So, that’s kind of the process. One of the things that if I were a veteran and I was watching this, I would want to know how much is this going to cost me? Kevin, do you want to go through that a little bit?

Kevin: Yeah. Like most courts in the country, I would say that there’s a filing fee to have your case heard at the CAVC and that’s $50. And you know, veterans can, if they cannot afford the $50 filing fee, can file a declaration of financial hardship, which then the Court will review and waive the filing fee. So, what are the other either the $50 filing fee or the DFH, as it’s called.

As far as veterans who want attorney assistance or other practitioner assistance at the court, at CCK, veterans do not need to pay attorneys fees. CCK is compensated if they’re successful in the appeal under a law called the Equal Access to Justice Act or EAJA. And that federal law allows for attorney compensation for the time they spent working on the case in situations where the attorney has been obtaining a successful outcome for the veterans during the appeals. So, court fees also do not affect veterans’ back pay if there is a retroactive award after the case has been returned to the Board and maybe the Board granted benefits and the veteran is expecting to receive retroactive benefits. The Court fees would not impact that at all.

Christian: Right. So, another question that I will always like to try to put myself in the shoes of who’s going to be watching this, we’ve been talking a lot about representing yourself at Court, getting someone who’s accredited at Court, someone who can practice before the Court. I would want to think, do I need an attorney once I get to the CAVC? So, no, the answer to that question is you don’t need an attorney to take your court to the United States Court of Appeals for Veterans Claims. It’s referred to as representing yourself per se. The Court has a whole process. They’ll let you know about what’s going on in the case. You can file an informal brief. They have a form that you can fill out. The VA attorney will file a brief arguing if they don’t agree against your position and the Court will take up the case just like it would as if you were represented by an attorney.

You definitely don’t need it, but as someone who’s been practicing in this practice area for seven years, I would recommend it. You can proceed on your own, but you are going to go up against experienced VA attorneys who are well-versed in VA law because that’s their job. And also something that I always want to know when talking about this is when you’re working with an attorney who represents you at the Veterans Administration before VA, not all of those attorneys also work at the CAVC.

Like I said, Kaitlyn, Kevin, and I, that’s our practice area where we practice in court attorneys, we’ve represented. Kaitlyn and Kevin had been here for a little both over four years. I’ve been here for seven years. We’ve represented hundreds of people at the CAVC.

And there’s, I think we’re going to provide a link to our website where you can check out some of our Court wins that we’ve had over the years. Without a qualified representative at the court, identifying the legal issue is sometimes a very complex issue of regulatory and statutory interpretation. There can be a disadvantage there and we definitely in our opinion be a good idea to find someone who is well-versed in those issues. Just like the VA attorney is going to be.

And there’s definitely we have a blog post that you can look at to learn more about the benefits of hiring an accredited representative for your appeal, hiring someone who can represent you before the CAVC in your appeal, and you should check that out.

So, unless you Kaitlyn and Kevin have anything to add? Just want to thank you guys for tuning in today. More information about the CAVC and the appeals process can be found on our blog. And also make sure to stay up to date by subscribing to our channel and following us on social media. Thank you.