What is the Process in a Court of Appeals for Veterans Claims (CAVC) or Veterans Court Appeal?

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

The United States Court of Appeals for Veterans Claims (CAVC) is a federal appellate court located in Washington, D.C. with judges appointed by the U.S. President.   The CAVC hears the appeals of claimants (i.e., veterans and their dependents) who were unsuccessful before the Board of Veterans’ Appeals (BVA).  The CAVC retains exclusive jurisdiction to review all final BVA decisions.

The CAVC process, also known as the Veterans Court appeal process, involves multiple steps, which can be confusing and daunting.  The team of veterans’ advocates at Chisholm Chisholm & Kilpatrick LTD may be able to assist you through the process and answer any questions about next steps or your rights.  Reach out today to request a free consultation with a member of our team.

What Steps Are Involved in a CAVC Appeal?

When a veteran disagrees with a BVA decision, they have the right to request a judicial review by the Court of Appeals for Veterans Claims.  By filing an appeal, the veteran (i.e., the appellant) is essentially taking legal action against the Secretary of the U.S. Department of Veterans Affairs (i.e., the appellee).  Once the case transfers to the CAVC it becomes a federal case, meaning it is no longer under the jurisdiction of the Department of Veterans Affairs (VA).

Once your case is at the CAVC, the legal process can get even more perplexing.  A veterans lawyer can walk you through the process and help you prepare the best legal argument possible.  The CAVC will not appoint a lawyer to represent you, so it is essential to find your own.

The following is a brief overview of the steps involved in a CAVC appeal (with CCK as a representative):

1. CCK will help you file a Notice of Appeal (NOA) with the CAVC within 120 days of the BVA decision and request a copy of your claims file from the VA.
2. The Court will then notify all involved parties that the case is under appeal, place the case on the docket (the Court’s record and scheduling of proceedings), and issue everyone a Notice of Docketing.  When the clerk at the CAVC dockets your case, your claim officially becomes a Court case.
3. VA will have to serve you with a copy of your complete file, referred to as the Record Before the Agency (RBA).  The Court will then issue you a 60-day Notice to File Brief.
4. Our team at CCK will help you review your records for accuracy and submit your Designation of Record (DOR) to the Court within 60 days of docketing.
5. Our attorneys will then review your VA claims file (i.e., the RBA) and discuss a strategic plan of action with you.
6. The Court will schedule a briefing conference and send you an order with the date and time of the initial conference.
7. Our team at CCK will participate in a telephone conference on your behalf with VA’s attorney.  A member of the Court’s Central Legal Staff will moderate the conference.  We will try to resolve the issues during the call.  The sooner we can get the original decision overturned, the sooner you can receive your benefits.
8. If the issues in your case are not resolved at this conference, we will proceed to briefing.  Briefs are written arguments provided to the Court.

Once the Court has received all the records and briefs, it will assign your case to a Court of Appeals for Veterans Claims judge who will render a decision.  As you head into an appeal with the Veterans Court, there are few things to keep in mind:

• The Court is in Washington, D.C.; however, neither you nor your attorney needs to travel to the CAVC to appeal your case.  The CAVC can handle your case electronically.
• It is critical to thoroughly review your case file with your attorney, page by page, before submitting the DOR to the court.  Missing records can cost you your case.

Once your case reaches the Court of Appeals for Veterans Claims and leaves VA’s jurisdiction, the case turns adversarial.  This means that VA no longer has a duty to help you develop evidence or support your claim.  You are on your own and, therefore, may want to seek an attorney’s assistance if you have yet to do so.

Play

Court of Appeals for Veterans Claims Decisions

Most often, decisions from the Court of Appeals for Veterans Claims come from a single judge; however, there are certain situations in which more than one judge may be involved.  Complex or precedential cases are more likely to be considered by multiple judges.

Generally, the CAVC 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 a 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 readjudicate 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 CAVC Decision

Claimants who disagree with a CAVC decision have a few options for next steps.  They can request a motion for reconsideration (i.e., asking the judge to reevaluate their decision).  Claimants can also request a panel decision.  Those with cases initially decided by a single judge can request that a panel of judges decide the case.  Individuals with cases that have been decided by a panel of three or four judges can request that the whole court come to a decision, referred to as en banc (i.e., French for ‘in the bench’).

Another option is for appellants to bring their case to the U.S. Court of Appeals for the Federal Circuit, the next level in the federal system.  To bring a case to the Federal Circuit, a legal error must have occurred during the CAVC’s decision making.

How Much Do Veterans’ Attorneys Charge for a CAVC Appeal?

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.  Furthermore, Court fees do not affect a veteran’s back pay (i.e., the retroactive award of benefits VA owes the veteran from the effective date of their claim).

CCK Offers Free Consultations for Veterans

Are you considering appealing a Board decision to the Court of Appeals for Veterans Claims?  For a free consultation with a qualified veterans attorney, reach out to Chisholm Chisholm & Kilpatrick LTD today.