The process in a U.S. Court of Appeals for Veterans Claims (CAVC) or Veterans Court appeal involves multiple steps overseen by a federal court, which can be confusing and daunting. You can appeal a decision made by the Board of Veterans’ Appeals (BVA) by filing an appeal with the CAVC. The CAVC, a federal appellate court with judges appointed by the President of the United States, retains exclusive jurisdiction to review all final BVA decisions.
Our veterans advocates at Chisholm Chisholm & Kilpatrick LTD will be glad to assist you through the CAVC appeals process and answer any questions you may have about your rights or what the next steps are. Contact our office to request a free consultation: 401-331-6300.
What steps are involved in Court of Appeals for Veterans Claims appeals?
When a veteran disagrees with the BVA’s decision, he or she has the right to ask the Court of Appeals for Veterans Claims to provide a judicial review. By filing an appeal, the veteran (called an appellant) is essentially taking legal action against the Secretary of the U.S. Department of Veterans Affairs (called the appellee). Once the case transfers to the Court of Appeals for Veterans Claims, it is no longer under the jurisdiction of the Department of Veterans Affairs (VA). It becomes a federal case.
Once at the Court of Appeals for Veterans Claims, the legal process can get even more perplexing and tangential than the earlier stages of appeals. If you have yet to retain a lawyer, now would certainly be the time to do so. A lawyer can walk you through the process and help you prepare the best legal argument possible.
Below is a brief overview of the steps involved in a CAVC appeal:
- We will file a Notice of Appeal (NOA) with the CAVC within 120 days of the BVA decision on your case and request a copy of your claims file from the VA.
- 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.
- The VA will then have to serve you with a copy of your complete file referred to as the Record Before the Agency (RBA), and the Court will then issue you a 60-day Notice to File Brief.
- We will review your records for accuracy and submit your Designation of Record (DOR) to the Court within 60 days of docketing.
- Our attorneys will review your VA claims file (called the Record Before the Agency or RBA) and discuss a strategic plan of action with you.
- The Court will schedule a briefing conference and send you an order with the date and time of the initial conference.
- We will participate in a telephone conference on your behalf with the VA 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.
- If the issues in your case are not resolved at this conference, we will proceed to briefing. (Briefs are simply 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.
Three Important Things to Keep in Mind about Court of Appeals for Veterans Claims Appeals
As you head into an appeal with the Veterans Court, there are few things to keep in mind:
- The CAVC is located in Washington, DC, but neither you nor your attorney needs to travel to the Court 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 the VA’s jurisdiction, the case turns adversarial. This means that the VA no longer has a duty to help you develop evidence or support your claim. You are on your own and should seek a lawyer’s help if you have yet to do so.
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 Court of Appeals for Veterans Claims 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.
Request a FREE consult with a determined veteran appeals attorney today.
For a free consultation with a qualified veterans appeals attorney, call Chisholm Chisholm & Kilpatrick LTD today at 401-331-6300.« Return to the Veterans' Resource Center
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