The Board of Veterans’ Appeals is the appellate body of the Department of Veterans Affairs that has the ability to review decisions issued at the Regional Office level. The Board consists of Veterans Law Judges who are the adjudicators. When receiving a decision from the Board, you will also find enclosed the Notice of Appellate Rights. Generally speaking, the Notice of Appellate Rights explains what to do if you disagree with VA’s decision. In this case, it applies to the Board’s decision specifically. As the process of appealing to the Court will be changing due to the implementation of Appeals Reform, the Notice of Appellate Rights will be changing as well.
Notice of Appellate Rights following a Board Decision Under Legacy Appeals System
The Notice of Appellate Rights is attached at the end of every Board decision in the Legacy appeals system, represented by VA Form 4597, Your Rights to Appeal our Decision. It starts by explaining that the Board’s decision is the final decision for all of the issues being addressed. However, it does indicate that some issues can be remanded to the Regional Office for additional development. In those instances, the Notice of Appellate Rights would not apply because remanded issues are not final decisions and therefore cannot be appealed.
The Notice of Appellate Rights continues by outlining the options you have to appeal any issues that were granted, denied, or dismissed, as well as the processes involved:
- Appealing to the Court of Appeals for Veterans Claims. You have 120 days from the date of the Board’s decision to file a Notice of Appeal with the Court. Additionally, you must submit a $50 filing fee, or a declaration of financial hardship to waive the fee, along with your appeal.
- Filing a motion for Reconsideration. Asking the Board to reconsider any part of its decision by writing a letter to the Board clearly explaining why you believe it committed an obvious error of the facts or law, or stating that new and material service records have been discovered that apply to your appeal.
- Filing a motion to Vacate. Asking the Board to vacate any part of its decision by writing a letter to the Board stating why you believe you were denied legal due process during your appeal.
- Filing a motion for revision based on a clear and unmistakable error (CUE). Asking the Board to revise any part of its decision by writing a letter to the Board clearly showing that the correct facts, known at the time, were not before the judge or that the judge incorrectly applied the law as it existed at the time. You can only request revision based on CUE once per decision.
The Notice of Appellate Rights included in Legacy Board decisions also provides information regarding representation. Specifically, it indicates that you are allowed to have someone help you with your appeal, including Veterans Service Organizations (VSOs) or attorneys, but representation is not required. Additionally, it explains that VSOs provide free service while attorneys charge for their services. Importantly, if you are represented by an attorney, you must file an attorney fee agreement clearly specifying if VA is to pay the attorney directly out of past-due benefits.
Notice of Appellate Rights following a Board Decision Under Appeals Reform
Like the Legacy appeals system, the Notice of Appellate Rights is still attached at the end of Board decisions. However, under Appeals Reform, it is represented by the following form: RAMP VA 10183-SB, Board Appellate Rights. It indicates to choose one of the available review options to continue your case, and outlines such options in a chart:
- File a Supplemental Claim. You must submit new and relevant evidence. A Regional Office employee will then determine whether the new and relevant evidence changes the decision. You have one year from the date of the Board’s decision to submit VA Form 20-0995, Veteran’s Supplemental Claim Application.
- Appeal to the Court of Appeals for Veterans Claims. You have 120 days from the date of the Board’s decision to file a Notice to Appeal. The Court will review the Board’s decision to determine if any legal errors have been made. You have the option to represent yourself at Court, otherwise you will need to hire a VA-accredited attorney to do so.
The Notice of Appellate Rights for Appeals Reform Board decisions also provides information specific to the new appeals system itself. Here, the Notice of Appellate Rights explains the meaning of “new and relevant” as it shifts away from the Legacy system’s evidentiary threshold of “new and material”. In this case, “new” describes information that VA did not have before the last decision and “relevant” describes information that could prove or disprove something about the case. Additionally, the Notice of Appellate Rights discusses VA’s duty to assist as it applies under Appeals Reform. Specifically, VA is only required to help you obtain evidence that is needed to support your case during initial and supplemental claims. However, the Board is no longer obligated to do so.
Importantly, the Notice of Appellate Rights notes that if the deadline to appeal the Board’s decision has passed you can either:
- Add new and relevant evidence and request a supplemental claim
- File a motion to the Board of Veterans’ Appeals
In regards to filing a motion to the Board, the Notice of Appellate Rights for Appeals Reform Board decisions offers the same information as outlined above under the Legacy appeals system.
What Are the Main Differences?
The Notice of Appellate Rights accompanying Board of Veterans’ Appeals decisions under Appeals Reform differs from the Notice of Appellate Rights accompanying Legacy Board decisions in several important ways. The biggest difference is that under Appeals Reform, claimants have the option to file a supplemental claim following an unfavorable Board decision. This is not an option in the Legacy system, and thus is not mentioned in the Notice of Appellate Rights. The Notice of Appellate Rights for Appeals Reform Board decisions also incorporates more information regarding evidentiary requirements and standards, as well as the role VA plays within the new appeals process.