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Appeals to the Court of Appeals for Veterans Claims

During this week’s Facebook LIVE installment, attorneys Christian McTarnaghan and April Donahower are joined by one of CCK’s partners, Barbara Cook, to discuss the process involved in bringing a VA benefits appeal to the Court of Appeals for Veterans Claims.

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

The Court of Appeals for Veterans Claims is a federal court located in Washington, D.C. dedicated to hearing the appeals of claimants (i.e. veterans and their dependents) who have been unsuccessful in their cases before the Board of Veterans’ Appeals. The CAVC was established by an act of Congress in 1988 and is currently made up of nine judges. VA benefits have been in existence since the Civil War, but until 1988 there was no way for claimants to appeal decisions denied at the Board level.

The CAVC is not a part of the Department of Veterans Affairs—it is an entirely separate federal entity tasked with overseeing decisions made by VA; therefore, these two systems operate differently. When a veteran’s claim is within the VA appeals system, a non-adversarial approach is taken. This means that VA assists veterans in the development of their claim for benefits, rather than working against the veteran to disprove the claim. However, this is not the case when appealing to the Court of Appeals for Veterans Claims; VA will have an attorney defending the agency’s position—and opposing yours— during an appeal to the CAVC.

How do you file an appeal to the Court of Appeals for Veterans Claims?

Once the Board of Veterans’ Appeals issues a decision, claimants have 120 days to file an appeal to the CAVC or the decision becomes final. Claimants are not required to appeal decisions to the Court, however, if you choose not to, the effective date of the claim will be lost and the Board’s decision will become 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 the date of the Board’s 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 Ave. NW, Suite 900

Washington DC, 2004-2950

Fax: (202) 501-5848

Email: esubmission@uscourts.cavc.gov

What should I expect after the appeal is filed?

Following a Notice of Appeal, the Court of Appeals for Veterans Claims issues a docketing statement acknowledging that the appeal has been filed and advising the appellant (the veteran or their dependent) of a $50 court filing fee. Veterans who are unable to pay may complete a Declaration of Financial Hardship waiving that fee.

Following completion of the waiver or payment of the filing fee, the Office of General Counsel—the agency within VA that represents the secretary in CAVC cases—will send the appellant a letter with a form. This form will request consent for the veteran’s c-file to be shared with the Court.

The Office of General Counsel then serves the appellant with a Record Before the Agency (RBA). The record before the agency is the claims file and any other material as it existed when the Board made its decision. The Court of Appeals for Veterans Claims operates on a closed record—meaning that appellants cannot submit new evidence into the record at this stage of the process.

If the appellant has an attorney representing them before the Court, a pre-briefing conference will be scheduled. These conferences are available to every individual bringing their case to Court. The pre-briefing conference is a way for the two parties involved to potentially come to an agreement on an error the Board made during adjudication. Reaching an agreement at this stage of the appeals process can resolve the appeal much more quickly. In this event, a joint motion for remand is filed and the case is sent back to the Board.

When an agreement cannot be reached, the appellant’s representatives will file a brief with the Court. A brief is essentially a list of arguments as to why the Board’s decision on a claim was wrong. Veterans or dependents who are representing themselves may submit an informal brief. When an attorney is involved the brief has more formal requirements, such as a Statement of the Case explaining the claim’s history, an argument section, citations to RBA pages, and more.

Usually, three briefs go to a judge at the Court of Appeals for Veterans Claims. The first is the appellant’s opening brief, which includes the statement of facts and initial arguments. Then, the Office of General Counsel responds to those arguments in its own brief. Finally, the appellant submits a 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. In fact, most cases are decided based on the paper submissions (e.g. briefs) sent to the Court. Sometimes the Court will schedule oral arguments with representatives, which appellants are not required to attend either.

Decisions from the Court of Appeals for Veterans Claims

Most often, decisions from the Court of Appeals for Veterans Claims come from a single judge. There are situations in which more than one judge may be involved. Cases that are complex or may result in a change in law are more likely to be considered by multiple judges.

The Court of Appeals for Veterans Claims, generally, either affirms the Board’s decision or vacates the decision and remands the case back down to the Board. An affirmance means that the Court could not find legal errors made by the Board during adjudication, or if it did, the error did not affect the outcome.  When the Court of Appeals for Veterans Claims vacates the decision and remands the claim, it means that a legal error was found in the Board’s decision. In the event of a remand, the Board must re-adjudicate the claim. In extremely rare cases the Court can reverse a decision, meaning it sends the case back to the Board with instructions (such as to grant service connection).

Appealing a Decision from the Court of Appeals for Veterans Claims

Those who disagree with the Court of Appeals for Veterans Claims decision have some options if they would like to continue on with their appeal. One is a motion for reconsideration, which requests that the judge reconsider his or her decision. Another option for those unhappy with the Court’s decision is to request a panel decision. Those with cases initially decided by a single judge can request a panel of judges decide the case. Individuals with cases that have been decided by a panel of (three) judges can request that the whole court come to a decision, referred to as en banc. Another option is for appellants to bring their case to the Federal Circuit Court of Appeals, the next level in the federal system. To bring a case to the Federal Circuit, a legal error must have occurred during the court’s decision making.

How much does an appeal to the CAVC cost?

Appellants do not need to pay attorney fees for successful appeals (remands) before the Court of Appeals for Veterans Claims. 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, the retroactive award of benefits VA owes the veteran from the effective date of their claim.

Category: Veterans Law

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