CCK’s Robert Chisholm and Zachary Stolz discuss United States Court of Appeals for Veterans Claims.
- What is the Court of Appeals for Veterans Claims? 2.Can any veteran immediately appeal their denial to the Court?
- The Court is not part of the VA. Is that important to the process?
- What’s the process at the Court? Can a veteran add new evidence?
- How many cases does CCK represent at the Court each year?
- Does a veteran need an attorney at the Court?
- At the VA, the system is non-adversarial. What does this mean?
- Is the Court system adversarial?
- What does a win look like at the Court?
- Does the process become non-adversarial again back at the Board?
- Can one add evidence once the case goes back to the Board?
- Does the Court ever award benefits or reverse a decision?
- Does the Court make precedential decisions?
- If the Court denies the appeal, is that the end of the road?
- Does CCK handle cases in the Federal Circuit?
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VIDEO TRANSCRIPTION
Robert: Hi, this Robert Chisholm from the law firm of Chisholm Chisholm & Kilpatrick. With me is Zachary Stolz also from the law firm of Chisholm Chisholm & Kilpatrick and today were going to be talking about the Court of Appeals for Veterans Claims. Zach, what is the Court of Appeals for Veterans Claims?
Zach: The Court of Appeals for Veterans Claims is the federal court that is in charge of making sure that VA follows the law when it makes decisions in veterans disability compensation claims.
Robert: So, can any veteran just immediately appeal their denial to the court?
Zach: No. The court exists at the end of the process so a veteran would have to have filed his or her claim at the Regional Office, worked its way up through the Board of Veterans’ Appeals and then the court oversees what the Board of Veterans’ Appeals does.
Robert: So, if I understand it correctly then the court reviews the final action or the final decision from the VA?
Zach: That’s right.
Robert: The court is not part of the VA and is that important to the process?
Zach: It’s very important. The court is not part of VA which means that it does not have a bias towards VA and can give a better and a fresh look at his or her claim when it comes to them.
Robert: Can you tell us a little bit about the process in court? What happens? So, for example if a veteran has been denied, can they add new evidence once the case goes to court?
Zach: They can’t add new evidence. The process is once you appeal from the Board to the court, the record is closed off, you can’t add any new evidence and the Court of Appeals for Veterans Claims will assign a judge to the case and the judge will read briefs both from the Department of Veterans Affairs and from the veteran and the veteran’s attorney and then they will make a decision on the case.
Robert: Can you tell us on average how many cases we represent in the Court of Appeals for Veterans Claim each year?
Zach: Chisholm Chisholm & Kilpatrick represents around 1500.
Robert: Does a veteran whose claim has been denied by the Board need an attorney in court?
Zach: You’re not required to have an attorney in court but counsel who has a little bit of experience or experience the way CCK has experience with the court, it can help them out a lot.
Robert: Does the VA have someone representing their interest in the court?
Zach: Yes, VA is represented by attorneys at that level.
Robert: Okay. So, do you think it’s a good idea for a veteran to go to court and not have counsel?
Zach: I think that is a bad idea.
Robert: Okay.
Zach: I think that once you go to the Court of Appeals for Veterans Claims, if the government has an attorney, I think the veteran should have an attorney.
Robert: Some veterans understand that the system at the VA level is non-adversarial, can you explain what non-adversarial means?
Zach: At the VA system, non-adversarial means that VA is supposed to help the veteran with his or her claim by going out and getting medical evidence, by ensuring that their record is complete, by asking questions that are supposed to facilitate making sure that the claim– that the proper claim gets granted. Essentially, non-adversarial means VA is there to help the veteran out through the process.
Robert: And does that non-adversarial system change once you get to court?
Zach: Yes. Once you file an appeal at the court, VA has an attorney at that point and the veteran is now in an adversarial system where VA no longer is there to help the veteran. VA is there only to represent its own interests.
Robert: So, Zach what does a win look like in the Court of Appeals for Veterans Claims?
Zach: Nine times out of ten, a win at the Court of Appeals for Veterans Claims is the court finding that the Board committed a legal error and the court will then order the Board to correct that legal or procedural error. Generally, that is in favor of the veteran. It will be a favorable finding for him or her and will help them out back at the Board of Veterans’ Appeals level.
Robert: Does the process after you’ve been to court where it’s adversarial then become non-adversarial when it goes back to the Board of Veterans’ Appeals on remand?
Zach: It does. Once you get out of the Court of Appeals for Veterans Claims and you’re back at the Board, the Board is supposed to again start helping the veteran.
Robert: And can one add evidence to the record once the case is back to the Board?
Zach: Yes.
Robert: So it gives you the chance to add more things to hopefully then win the claim?
Zach: In addition to that, you have a court order already telling the Board of Veterans’ Appeals that it erred. So, not only can you add new evidence but you also have something helpful from the court to help the Board move along and make the right decision.
Robert: Does the court ever actually award benefits like reverse a decision say, “You’re entitled to say a 10% or a 20% rating,” can that happen?
Zach: Yes. The court can do that and the court has the power to reverse the Board’s decisions. It would be rare for the court to assign a rating at that level. It would primarily reverse the Board’s erroneous finding and tell it to award the correct rating. Yes, reversals do happen at the Court of Appeals for Veterans Claims.
Robert: So, is there different kinds of decisions that the court makes, some are single judge and some are precedential, can you tell us a little bit about the difference between the two?
Zach: The court is authorized to have single judges make decisions and those don’t affect– those only effect the individual veteran in the case but occasionally the court convenes a three-judge panel that can issue a precedential decision that would have an effect on the entire disability compensation system.
Robert: If the Court of Appeals for Veterans Claims denies the appeal, is that the end of the road for a veteran?
Zach: It’s not. There is another court that sits above the Court of Appeals for Veterans Claims, it’s called the Court of Appeals for the Federal Circuit. It is also in Washington, DC. It can address pure questions of legal error. It has a very limited jurisdiction to review the court which makes the CAVC vital and very important and probably the most important court for most veterans but there is a higher court that makes sure that the CAVC follows the law.
Robert: And does our firm handle cases in the Federal Circuit as well?
Zach: We do.
Robert: And can you tell us about a case, maybe the AZ case, AY case that you handled in the Circuit and what that was about?
Zach: That case was about military sexual trauma. It dealt with the types of evidence that the Board of Veterans’ Appeals was able to examine in a case of an accusation of military sexual assault. It came down very favorably for the veteran and ensured that VA has to look at cases of military sexual trauma in lights more favorable to the veterans.
Robert: And that was a case that went to the Court of Appeals for Veterans Claims, the veteran lost there, the case was then appealed to the Federal Circuit and the Federal Circuit essentially announced a new rule if you will of how to make decisions in military sexual trauma cases that impacted the whole system.
Zach: That’s right. It was based on a reading of the relevant regulation and the Court of Appeals for the Federal Circuit clarified what that regulation meant and clarified what it truly meant was to be helpful for veterans.
Robert: Zach, thank you for your time this morning. This is Robert Chisholm from Chisholm Chisholm & Kilpatrick and Zach Stolz from Chisholm Chisholm & Kilpatrick. Thank you.
Zach: Thanks.
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