4 Reasons to Appeal to the CAVC vs. Supplemental Claim Lane: VA Claims
Christian McTarnaghan: Hi, everyone and welcome to another edition of CCK Live. My name is Christian McTarnaghan. Today, I’m joined by Amy Odom, and we’re going to discuss 4 reasons why veterans should appeal to the CAVC instead of taking the supplemental claim lane or filing a supplement claim.
I’m just going to do a quick overview of appeal options. Veterans in the AMA system have several options when it comes to appealing an unfavorable VA decision. This is different than some of the talks that we’ve had about the legacies and stuff. Amy, do you want to get into a little bit about this specific appealing to the Board option or lane, if you will, in the AMA?
Amy Odom: Sure. Under the AMA, veterans and claimants have the option to appeal to the Board of Veterans’ Appeals, which is the appellate body of the United States Department of Veterans Affairs. This just means that it is the absolute last word from the VA on a claim for benefits. It’s not bound by any decision that the Regional Office has made, so it can overrule a decision by the Regional Office.
When you get a decision from the Regional Office, if you’re not happy with it, you have a number of choices under the AMA system. You can submit a Supplemental Claim for the claimed disability. You can request Higher-Level Review or you can file a Notice of Disagreement and ask for appellate review by the Board of Veterans’ Appeals. Essentially, when you have a Board denial, the question that we’re going to cover is, what do you do next? We’re going to talk about whether you want to either go to the supplemental claim lane or appeal to the Court of Appeals for Veterans Claims. And you can find more information about these options on our blog. But in the meantime, Christian, can you tell us a little bit about the Court of Appeals for Veterans Claims?
Christian: Absolutely. I’d like to think that I know a little bit about this. It’s literally the only thing I’ve ever done in my practice of law.
So, the United States Court of Appeals for Veterans Claims, that’s a mouthful. This is a veterans practice, so there’s an acronym, the CAVC, or the Court. It’s a federal appellate court that’s located in Washington, D.C. that hears appeals of claimants, veterans, and their dependents, who are unsuccessful before the Board that you were just talking about, Amy.
The CAVC has exclusive jurisdiction to review all final Board decisions. Once you get to the CAVC and you’ve appealed that Board decision, the Court can do a few things. It can affirm the Board’s decision, which means in their opinion, there weren’t any legal or factual errors. Or it can vacate, what’s called vacate and remand, the case back down to the Board. Vacate basically means, a fancy way to say erases the Board’s decision, that part of the Board decision. Remands just means sends it back down to the VA, to the Board, which, like you said, is the final adjudicative body, the final decision-maker at VA.
Also, just note quickly in extremely rare cases, the CAVC will reverse either a factual finding or reverse the denial and order VA to grant the benefit. But that doesn’t really happen very often. It’s a very small percentage of cases where that’s the remedy.
Like I said, when the Court vacates and remands the decision, it means the Court has found that there’s a legal error and then they send it back down to the Board with basically an explanation of what legal error was made and orders the Board to do it again and to do it right. And what I usually will tell my clients is it’s another shot at getting a chance at those benefits, and you have the benefit of a federal Court order telling the Board what it did wrong and what it has to do next on remand.
We’re talking about appeals to the Court and we’re talking about supplemental claims. You want to talk a little bit about filing a supplemental claim, Amy, after a Board denial?
Amy: Sure. That’s option B, right? If you have a Board denial, you don’t want to go to the Court for some reason, you can always get VA to look at that claim again. The beauty of the VA system is that nothing is ever really final. A denial can be overturned at the Board or the Court, or you can ask the VA to take another look at it. But if you file a supplemental claim, you have to have new and relevant evidence. The VA is not going to look at your claim again unless you submit new and relevant evidence. If you do have new and relevant evidence, then VA will reopen and re-adjudicate the claim.
What is new and relevant evidence? New means it hasn’t previously been before the decision-makers. If you’ve already submitted an opinion from your doctor, you can’t then resubmit that with your supplemental claim and expect the VA to re-adjudicate the claim. That’s not new evidence. But if you have an opinion from a new doctor, a different doctor that is also in your favor, that would be new evidence because there is no prior evidence of that doctor’s opinion. Relevant means it has to be somehow relevant to the claim. What exactly that means under the AMA is still being explored. Remember, the AMA is relatively new. It’s only about, been in effect for 2 years now. But at the very least, it has to be relevant or speak in some way to the claim, the disability, or whether there is a connection between the disability in-service or about something that happened in service.
Also, you have to file this supplemental claim along with the new and relevant evidence, or at least an intent to file a supplemental claim within a year. You can’t decide five years after you receive the Board’s decision that you’re going to go ahead and take another shot with VA with the supplemental claim and expect that you’ll have the same effective date. Now, of course, you can always refile 5 years down the line whenever you want to, but you will lose the effective date of the initial claim if it’s ultimately granted unless you file within the year of the Board’s denial.
You can actually file a supplemental claim to rating decisions and CAVC decisions too. Imagine you get a Board decision that you’re unhappy with and you decide to appeal rather than going to the supplemental claim lane and you lose at the Court, you can still file a supplemental claim and protect the effective date of that initial claim if you do file within a year, the supplemental claim, within a year of the Court’s decision along with the new and relevant evidence. If you do decide to go the supplemental claim route, you must make sure that you have the appropriate form. VA will not accept just a written letter asking to reconsider your claim based on the new and relevant evidence. You must submit this proper form, and that’s VA form 20-0995. And you can find that on VA’s website.
There’s no limit on the number of supplemental claims you can submit. If you get a Board decision you’re unhappy with, you file a supplemental claim. If it’s still denied, you can file another supplemental claim, and another, and another. There’s no limit. But you do, of course, need to come up with that new and relevant evidence if you hope to prevail.
Christian, what kind of things should people consider in determining whether to go to the Veterans’ Court or file a supplemental claim?
Christian: Right. Like anything, it’s very situationally dependent based on the specific facts of the case. One appeal route may be better than the other. But appealing to the CAVC is generally the best and most efficient choice for veterans. We think that’s the case for a couple of reasons. First, and I know that this is important to a lot of my clients, you get your day in Court. By filing an appeal to the CAVC, the veteran, the claimant, the appellant is, taking legal action against the secretary of the U.S. Department of Veterans Affairs, who will be the appellee. Once the case transfers to the CAVC, it literally becomes a federal case. Meaning, it’s separate and apart from the VA. It’s no longer under VA’s jurisdiction and you’re having federal judges decide whether you get another chance back at the Board or not.
The Court also operates differently from VA. The Court views these cases objectively and it’s better positioned to evaluate the arguments made by each party in an objective, fair way.
What else are you thinking, Amy? What are the other potential benefits to go into the CAVC?
Amy: Well, what I think is the major benefit of going to the CAVC is that you don’t have to come up with any new evidence. It can be really hard to get the kind of evidence that you need to be able to prevail in a supplemental claim. As we just kind of talked about, it has to be new and relevant. That means, potentially, if the only question remaining in your case is whether your disability is related to Agent Orange exposure in Vietnam, you have to have medical evidence in order to prevail on that issue. Probably, that means to be relevant, you have to be able to go out and get a medical opinion on that issue. And that can be really hard for veterans to do. That’s a major benefit of going to Court is that you don’t have to come up with new and relevant evidence to get somebody to take a look at your case and see if VA is doing something wrong.
The flip side of that is that you can’t submit new evidence to the Court. The Court is an appellate court, meaning, it just reviews what the Board did based on the evidence that was before the Board at the time of its decision. It will not consider any new evidence that wasn’t before the Board, even if it predates the Board’s decision in most cases.
The bottom line is if you can go out and get new evidence that’s relevant to your claim, then maybe the supplemental claim lane is right for you, but the vast majority of claimants are not able to do that. And those claimants, their best bet is to go to the Court and get a correction of the VA’s error.
Christian: Right. If I might jump in with another benefit of going to the CAVC, Amy, is that you have the option to ask for review by multiple judges. Like you talked about before, Amy, there is an option after an unfavorable decision from the Court to file some new and relevant evidence and a supplemental claim one year after. However, you have avenues if your first judge doesn’t really necessarily agree with your position.
Decisions at the CAVC normally come from one judge, a single judge, but there are certain situations where more than one judge can be involved. Complex or precedential cases, for example, are more likely to be considered by multiple judges. If you were to get an unfavorable decision from a judge, you can ask for the judge to reconsider or you can also ask for what’s called panel review, which is when multiple judges would consider the case.
Similar to what I was talking about before, the reversals, panels are pretty rare when you’re talking about the percentage of overall cases, but those are additional options that you have when you get to the Court. The thing that’s interesting about panel decisions is those are presidential decisions. And so, that would be a decision that impacts and affects how all of veterans are afforded or how all veterans are treated with the rule that the Court announces in the presidential decision. It creates case law that needs to be followed in all cases.
Amy: Yeah, Christian. And I would say another reason that I think going to the Court as opposed to the supplemental claim lane might be a good option for some veterans is that it doesn’t cost anything to go to the Court. At CCK, veterans don’t pay attorneys fees for successful appeals before the Court. And by successful appeals, I mean, the Court agrees with us that the VA made some errors and their claimant sends the case back for the VA to fix those errors. Or in the very rare circumstance, as Christian alluded to, the Court reverses the VA and orders the VA to pay the veteran benefits.
When we are successful at the Court, our attorneys fees for the time that we spend working on the case is covered by the Equal Access to Justice Act, which is the federal law that allows individuals, small business, and public interest groups to obtain representation before the federal government at no cost in the event that the individual or group is successful. In that case, we would ask the Court to order the VA to pay us attorneys fees, but that doesn’t come out of any money that would be due and owing to the claimant if he or she were to prevail back before the VA on remand.
This differs from BVA appeals and supplemental claims in that if a veteran has an attorney represent the veteran or the claimant before the Board or a supplemental claim, then usually what happens is the attorney receives the contingent fee of a percentage of the retroactive benefits that are recovered. This means that if a claimant is awarded retroactive benefits based on eligibility stemming from a previous date in time, then the veteran’s advocate would receive a percentage of those retroactive benefits. And that’s not the case with a Court appeal, at least as CCK.
Christian: Right. We hope this video has been helpful. There are definitely certain situations that benefits a veteran to hire an advocate or attorney to represent them in Court. For more information about choosing the right rep for your case at the CAVC, check out our recent video on YouTube about that subject. And as always, thank you for tuning in and don’t forget to subscribe to our channel for more veterans news, tips, and information.
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