What is the CAVC, or Veterans Court?
The CAVC is often presented as the “next step” for veterans if they receive an unfavorable decision from the Board of Veterans’ Appeals. This can lead to some confusion regarding what the CAVC is and the nature of its relationship to VA. Continue reading to learn more about the CAVC.
What is the CAVC?
When the Board of Veterans’ Appeals (BVA) denies an appeal, a veteran has the option to appeal their case to the CAVC (Court of Appeals for Veterans Claims). The CAVC has exclusive jurisdiction to review BVA decisions. In other words, the CAVC is not part of VA, nor is it under the jurisdiction of VA. The two systems operate independently.
How Was the CAVC Created?
Prior to the formation of the CAVC, VA had the final word on all veterans’ cases. If VA denied your claim, your fight for benefits was over, unless you wanted to start again by filing an entirely new claim.
Legislators and veterans’ advocates realized the need for change and a fair judicial review of veterans’ disability claims. So, in 1988, President Reagan signed the Veterans’ Judicial Review Act into law, which effectively established the U.S. Court of Appeals for Veterans Claims — and for the first time, gave veterans the right to seek relief outside of VA.
Initially, the VA opposed the formation of the court, perhaps wary of having its decisions come under scrutiny for the first time in history. But the court has been very successful. R. Randall Campbell, former assistant general counsel of the VA noted, “The court is a vital part of the process to ensure that veterans get not only the benefits that they deserve, but also the fair process that they deserve and expect.”
What is the Difference Between VA Cases and CAVC Cases?
One of the key differences between VA Courts and the CAVC is that when a claim is pending before VA, it will assist veterans in the development for their claims, instead of working to disprove them. At the CAVC, however, VA no longer has a duty to assist veterans; instead, VA will have an attorney defending the agency’s position and opposing the veteran’s position.
Additionally, the CAVC’s role is not necessarily the same as the role of VA or BVA. For example, the Board’s job is to consider all the evidence that has been submitted, and in some cases be witness to a hearing, before issuing a decision regarding whether the veteran is entitled to benefits. The CAVC, however, is tasked with determining whether the BVA had the facts and law correct when it denied your appeal.
In theory, CAVC is not making a decision regarding your condition, but rather deciding whether the BVA made a mistake when issuing its previous denial.
Who Makes Decisions at the CAVC?
Judges at the CAVC are appointed by the President of the United States with the consent of the Senate. Single-judge decisions affect only the individual veteran in the case. But occasionally the Court convenes a three-judge panel that can issue a precedential decision, meaning it affects the entire disability compensation system. These judges rule on all types of benefits issues, including disability compensation, educational assistance, survivor benefits, and pension benefits. The judges serve for a term of 15 years.
Currently, the court has nine, permanent, active judges and several retired judges that the CAVC can recall to service.
What is the CAVC Process?
If a veteran disagrees with a decision from the Board of Veterans’ Appeals in the Legacy appeals system, the only option for appeal is to appeal to the CAVC within 120 days, or they will lose their effective date. If a veteran does not appeal within this window, they will have to file a supplemental claim, which will result in a new effective date, and likely less VA disability compensation if the veteran is eventually granted benefits.
Under the Appeals Modernization Act (AMA), if veterans receive an unfavorable decision from the Board, they have two main options:
- File a supplemental claim with new and relevant evidence at the Regional Office level
- Appeal to the CAVC
With the AMA system, appealing to the CAVC is much like how it is in the legacy appeals system. After the Board issues a decision, the claimant will have 120 days to file their appeal to the CAVC, otherwise the decision will become final.
In order to file an appeal, the claimant will need to complete a Notice of Appeal with the Court. This form will call for information including the claimant’s name, address, telephone number, address, VA claims file number, date of birth, and the date of the Board decision the claimant is appealing. 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 Avenue NW, Suite 900
Washington DC, 2004-2950
Fax: (202) 501-5848
Email for represented claimants: [email protected]
Email for self-represented claimants: [email protected]
Once the appeal has been filed, the CAVC then places the veteran’s case on the docket. The docket is the Court’s record and scheduling of proceedings. The Court will then issue a Notice of Docketing to all parties involved in the case.
VA then needs to provide the veteran, or claimant, with a copy of their complete file known as the Record Before the Agency, or RBA. The CAVC reviews a closed record. This means that claimants cannot submit new evidence into the record for their CAVC appeal.
After this, the Court will then issue a 60-day Notice to File Brief. This is where claimants, or their accredited representatives, can list arguments as to why the Board’s decision contained a legal error.
Typically, there are three briefs that go to a judge at the CAVC:
(1) the claimant’s opening brief;
(2) the Office of General Counsel’s response; and
(3) the claimant’s reply brief to counter the arguments made by the General Counsel.
Importantly, veterans do not need to attend a hearing at the CAVC in order to have their case decided. In other words, many veterans do not appear in Court to have their case decided. Most cases are decided based on the briefs sent to the Court.
In some cases, the Court will schedule an oral argument in which both the veteran’s representative and an Office of General Counsel representative will appear in Court before the judge or judge panel.
What Decisions Can the CAVC Make?
Generally, the CAVC will decide one of three outcomes:
- Remand—A remand is generally a favorable decision. If a remand is issued, the case will go back down to the Board of Veterans’ Appeals for re-adjudication. There, the BVA will issue a new decision based on the errors that have been identified by the Court. A remand from the CAVC can result in benefits because the CAVC is forcing VA to acknowledge it made a legal error in its original decision.
- Reversal—In some rare occasions, the CAVC may reverse a Board decision directly and order VA to grant benefits directly.
- Denial— When a denial is issued, the Court is essentially saying that the BVA did not make any legal errors in its interpretation of the law and the denial it made in the veteran’s case was warranted. If the judges at the CAVC affirm a BVA decision, then the BVA’s denial of the claim will become final.
Do You Need A Representative for a CAVC Appeal?
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 VA law.
Filing an appeal with the CAVC on your own (i.e., pro se) is ill-advised. The Court processes can be quite confusing for a non-lawyer, and you certainly do not want to harm your chances of winning your case because of a simple error or lack of information. It is in your best interest to have a lawyer help you with your Court appeal.
“Pro se appellants are usually at a disadvantage” because, Campbell explains, they “do not have an advocate who is skilled in litigation who is looking out for their interests. They may not understand the administrative process, the legal issues, or the best way to present their case.”
To speak to a member of our legal team, call Chisholm Chisholm & Kilpatrick LTD today for a complimentary initial consultation.
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