BVA Decisions: Veterans Next Steps to Appeal VA Claims

Video Transcription

Christian McTarnaghan: Hi, everyone, and welcome to another edition of CCK Live. My name is Christian McTarnaghan again and today I’m joined by Brandon Paiva and Amy Odom. We’re going to be talking about what steps veterans can take, what the next steps are, to appeal after you’ve received a BVAdecision.

So, Brandon, you’re an accredited claims agent. So, I’m going to want you to talk a little bit about sort of the Board overview, what is a Board decision, what’s the Board, what can you do after you get a Board decision, things like that.

Brandon Paiva: Sure thing. Thanks, Christian. So, the Board of Veterans’ Appeals, also known as BVA or the Board, as you’ll hear us kind of abbreviate throughout this presentation. They’re essentially the appellate body of VA, meaning the Board has the ability to overrule a decision that is made by a VA Regional Office. Now, under the Appeals Modernization Act of 2019, or AMA, veterans have three lanes for appealing a decision that they received from the Department of Veterans Affairs.

The first is a Supplemental Claim lane. This option is used if a veteran is filing an appeal and they wish or choose to submit new and relevant evidence. The second option is what’s called the Higher Review lane. Now in this lane, very different than the Supplemental Claim lane, in the Higher-Level Review lane, the claim is reviewed by a senior VA claims adjudicator, and no new evidence is submitted. Whereas in a Supplemental Claim lane, you can submit new and relevant evidence, if you choose the Higher-Level Review lane, no new evidence is submitted.

Lastly, the third option is what’s called the Notice of Disagreement lane. Now this lane allows the veteran to appeal their case directly to the Board of Veterans’ Appeals. So say a veteran files a Notice of Disagreement and their case goes to the Board of Veterans’ Appeals. Then, that veteran receives a decision. What can you do with that decision, and can you appeal that decision?

So, under AMA, veterans have two options if they receive an unfavorable Board decision. The first is they can file a supplemental claim with new and relevant evidence at the Regional Office in response to that Board decision or they can appeal to the Court of Appeals for Veterans Claims, which my colleagues, Christian and Amy are going to go over in just a few moments. Specifically, if a veteran wishes or chooses to file an appeal with their Board decision and they choose to file an appeal to the Court of Appeals for Veterans Claims, or CAVC, veterans have to file this appeal to the Court within 120 days of that Board decision. Otherwise, after that 120 day period, that decision becomes final.

However, if a veteran wants to challenge this Board decision, but they don’t want to appeal their case to the Court of Appeals for Veterans Claims, the veteran may also file a supplemental claim. In so doing, they have to file new and relevant evidence in response to this Board decision. And then have, essentially, the case go back down to the Regional Office again for a new decision.

The Supplemental Claim lane option is still a great option for veterans to pursue their case if they’re denied at the Board of Veterans’ Appeals if they don’t or are unable to file an appeal to the Court of Appeals for Veterans Claims. But if you file that supplemental claim, you do run the risk of potentially impacting your original effective dates of the appeal or the claim that you’re filing.

Christian: Right. Thanks, Brandon. So, that is sort of an overview of what happens in the final VA decision, but there’s a whole other way for you to address, if you want, VA’s errors. And Amy Odom, CCK’s appellate strategy coordinator, there’s no one better to talk about the CAVC. So, why don’t you tell us what the CAVC is?

Amy Odom: Sure. So the Court of Appeals for Veterans Claims, or the CAVC, is a federal court located in Washington, D.C., with exclusive jurisdiction to review VA decisions on benefits. What that means is that this is the only court in the country who you can appeal a Board denial to. It’s not part of the VA. It’s an actual court, like I said, that Congress created for the sole purpose of reviewing VA’s benefits decisions.

So, that means that the veterans’ Court does not have a duty to assist the veteran in developing evidence like the VA does, and it also means that you can’t submit new evidence to the veterans’ Court. It’s appellate court. So, it’s not like the kind of court that you see on television like a trial court where there’s witnesses and testimony and juries and all that. No, it’s all done on paper, and you can’t submit new evidence.

So, if you want some more information on how the Court works, including the judges, take a look at our blog at CCK-law.com. If you are looking to appeal to the veterans’ Court, the first thing that you need to do is file a Notice of Appeal. Again, you have to do that within 120 days of the date of the Board’s denial, and you have to complete a Notice of Appeal form, which is available on the Court’s website. You must include information such as your name, address, telephone number, email address, VA claims file number, date of birth, and the date of the Board’s decision.

This is all important so that the Court and VA can understand what exactly you’re trying to appeal, and go ahead and locate that Board decision as well as your claims file, a copy of which they will eventually have to provide to you or your representative. The Notice of Appeal can be mailed, faxed, or emailed to the Court and you can find all that information on the Court’s website.

Once the appeal has been filed, the CAVC then places the appeal on their docket, and the docket is like a record of scheduling and proceedings. The Court will then issue a notice of docketing, assign the case and the appeal a case number, and provide a notice to all the parties involved, which would be you and the VA attorney, the Office of General Counsel, that the case has been docketed.

As I mentioned earlier, then VA has to provide the veteran or the veteran’s representative a complete copy of the claims file because this is going to be necessary to prepare the arguments, the legal arguments, that you’ll be making to the Court. This file is known as the Record Before the Agency, or the RBA. And like I said, it’s going to be everything that was in your claims file up to the date of the Board decision, nothing new can come in. If it wasn’t in your claim file on the date of the Board decision, the Court cannot even look at it. So, it won’t be in the Record Before the Agency.

Christian: Right. Thanks, Amy. So we file a Notice of Appeal, that kicks the case off, you get a case number you get your docket sheets open, you get the record of proceedings, which is everything that the Board looked at to make the decision.

So, after that process, it moves into a briefing process. Basically, the Court gives you 60 days to file a brief. A brief is just a written legal argument that claimants or advocates will submit on behalf of claimants or veterans that basically just lays out why the Board’s decision was wrong. It puts the facts of the case and the law that controls it in front of the Court and allows the Court to make a decision in that case.

So there are really three briefs that go to the judges, which are also sometimes referred to as go to chambers. There’s the opening brief, which like I said, Amy and I represent veterans and claimants at Court. So, I would draft a brief listing of all the reasons all the facts and law that I think is going to help my client be successful in their appeal. So, that’s the opening brief, it lays out the case, opening the case.

Then VA files their brief. An attorney at the Office of General Counsel, they represent the Secretary, they file a brief explaining where they might agree with us, it does happen sometimes, or where, why, and how they see the case differently. You know that the Board didn’t make a mistake. Then finally, advocates and claimants have, for the most part, the last word in the case, it’s called a reply brief. In my practice, I tend to try to focus the Court on what I think is the most important parts of the case, obviously, reassert disagreement with the Secretary’s position. So, those are the three things that the judge is going to get on their desk in order to make a decision and the case.

So, one of the things that we always like to highlight when we talk about and thank you for really emphasizing this, Amy, is this is an appellate court. It is very different than what you probably were used to when you were working at working through the VA process. Veterans don’t have to attend a hearing at the CAVC to have their case decided. Most cases are just decided on those three briefs that I was just talking about. So, if you’re represented, there’s a potential to have a phone, there’s a potential to have a phone call with that VA attorney to try to get the case resolved before it goes to brief. A member of the Court’s legal staff will be the moderator for that conversation.

In other cases, in other instances, the Court could schedule an oral argument, which happens, I don’t know the percentage, but very infrequently. I don’t know how many arguments there were last year but it’s certainly an aberration from the norm to have a case go to argument. And if it goes to argument, you argue or an advocate argues before a panel of three judges, and the Court will issue what we call a precedential decision.

So, a precedential decision is a decision that basically controls all of VA law, it doesn’t just decide one particular veteran’s case, which is what most of the single judge decisions we call do. Alright, so I’m talking about a decision, you’re probably wondering what can happen when I get to the CAVC? What can these judges do?

So, by and large, there are three things the judges can do. They can reverse, which basically means that a particular issue in a case or a particular fact might have been, the Board might have had the facts wrong. So, the reversal of factual finding the veteran, the Board says the veteran didn’t have x, the Court says, “No, the veteran did have x,” and you have to recognize that fact, they can reverse the whole denial of benefits. Again, these don’t these, this type of relief doesn’t happen very often. They can affirm, which means that judges can find that the Board didn’t do anything wrong, and they can remand the case back down to the Board, for a correction of a variety of legal or factual errors.

So, if you are at the CAVC, and the CAVC affirms the Board’s decision, you still have a little bit more that you can do to try to prove that the Board, and now the Court, might have done something wrong. So, you can file a motion for reconsideration, that requests that the judge takes another look at the case that maybe they missed something, maybe they overlooked something. You can also appeal a CAVC decision to the Federal Circuit.

So, the Federal Circuit is the appellate body that basically has jurisdiction over legal errors that the CAVC makes in their decision. So you got 81 days to do that. Once you get to the Federal Circuit, like I said, it’s really narrow jurisdiction. It’s pretty specialized practice there.

So, that’s basically as quickly as we could, the CAVC process. Now, one of the things we said the Court could do is remand. So, I want to kick it back to Brandon to talk about what can claimants and veterans expect if they go to the CAVC right from the Board to the CAVC, and now the CAVC remands it back down to the Board.

Brandon: Thanks, Christian. Yeah, so if the CAVC, or the Court of Appeals for Veterans Claims, if they remand or vacate that Board decision and it gets sent back down to the Board of Veterans’ Appeals for a new decision, the Board then at that point must send a letter recognizing that remand and also inform the veteran of their next steps. Part of this letter usually states that the veteran has 90 days from the date that letter is issued to submit any new and relevant evidence, or they may also waive that 90-day window completely and just ask for the Board to issue a new decision.

After that 90-day window has closed or after this period has ended or waived, the Board will then issue a new decision on those issues. Now, within that 90-day window, like I had said, you can submit new and relevant evidence in support of your claim or your appeal to try to get the Board to sort of side with you if you’re denied, maybe try to get a grant, with some new and relevant evidence.

So, once your case goes back in line, then you get another Board decision, sort of like how we started this whole process. So, say your case goes all the way up to the Court of Appeals for Veterans Claims, the Court remands the case back down to the Board for a new decision, then you submit new evidence, goes back in line and then you get a new Board decision. What happens if the Board still issues an unfavorable decision in that case?

Well, to put a kind of plainly, you can start this whole process all over again. You can then file an appeal via Supplemental Claim lane by filing new and relevant evidence, again at the Regional Office level in response to that Board decision, or you can appeal that case, that Board decision, again to the Court of Appeals for Veterans Claims, as long as you do so within those 120 days of the Board decision.

Christian: Right, so we’ve been talking a lot about claimants and veterans and advocates. So, I wanted to ask you this, Amy, does a veteran or a claimant need a representative at the CAVC?

Amy: No. A person always has the right to represent him or herself in court, but it’s not a great idea. I think Brandon and Christian, you both can vouch for me that over the years, veterans law has become more and more complicated. And once you are at the Court level, this is where you get into the most complicated stuff regarding the law and the facts. So, it’s always a good idea to have an experienced advocate, somebody who is experienced in litigating cases before the veterans’ court to represent you.

The Court’s website actually has a list of folks who are admitted to practice before that Court, because that’s the most important thing you want to look for in a representative. It’s that the person is actually admitted to practice before the veterans’ Court because otherwise the person just simply cannot represent you before the Court. You also want to know how many cases the person has litigated before the Court, how many years of experience the person has, those are the kinds of things that you’ll want to know. You can usually find that kind of information on the firm or the lawyer’s website.

We have a video presentation coming up discussing the best ways to pick an advocate before the veterans’ court.

Another thing to keep in mind is that you might have two different advocates in the life of your VA claim, you might have one advocate before the VA itself that represents you at the Regional Office and the Board of Veterans’ Appeals. So, for example, that’s what Brandon does. His work focuses on representing veterans before the VA itself, and then you might have an entirely different representative before the veterans’ court. That’s what Christian and I do. We specialize in representing veterans before the Court.

Christian: Right. The only thing I want to note is that sometimes the Court’s list of practitioners isn’t up to date. So, if you go find someone there and they say they practice VA law, I believe that there’s a phone number that you can call to sort of double-check the actual roles. So, I just wanted to note that if not, you know, the Court has a lot going on and I don’t know if that’s always completely up to date. Definitely, an important thing to know is whether the person that you want to work with is able to practice before the Court.

So, that’s really all that we have for today. Thank you so much for tuning in. As always, there’s more information regarding the BVA and appeals to the Court on our website. Also, be sure to subscribe to our YouTube channel for more videos about the CAVC process.