Picking the Right VA Disability Lawyer for Your CAVC Appeal
Christian McTarnaghan: Hi everyone, and welcome to another edition of CCK Live. My name is Christian McTarnaghan and this week I am joined by Kaitlyn Degnan and Amy Odom. In this video, we are going to be explaining how to pick the right disability attorney for your CAVC appeal or for your appeal to the United States Court of Appeals for Veterans Claims.
So, I am going to start with a quick overview and then I am going to kick it over to Kaitlyn and Amy. The CAVC is a federal court that is located in Washington, D.C. that is specifically dedicated to adjudicating the appeals of claimants who have been unsuccessful in their cases at the Board of Veterans’ Appeals, or the Board or the BVA.
So, an important deadline to note, I am going to hit it right off the bat, is after receiving your Board decision, you have 120 days to file an appeal to the CAVC. So, just be sure that you are filing that appeal timely if you disagree or you do not like something about the Board decision.
So, the CAVC is not a part of the Department of Veterans Affairs. The Board is, but the CAVC is a federal court and it is not. It is an independent court that has exclusive jurisdiction over the VA, the Veterans Administration.
So, it is important to note that when you get to court, the VA, the secretary, they are going to have an attorney that is defending the agency’s decision in arguing against your position that the VA did anything wrong. So, there is no longer a duty to assist, the record is closed. You cannot add evidence to the record once you get to the CAVC.
Also, the VA is now having an attorney to represent its position. They are not there in sort of the how they are supposed to be when you are working at the agency helping you through your case, helping you get the benefits that you deserve. It kind of switches tacts once you get to the CAVC.
So, the judges at the CAVC are appointed by the President and confirmed by the Senate. Some cases at the CAVC are going to be decided by one judge, others are going to be decided by three, or what is referred to as a panel. Or the panel can be all of the judges as well, which would be referred to as en banc. So, that is a little bit about the CAVC.
So, Amy, I want to ask you a question. Do you need representation when you appeal a case to the CAVC?
Amy: No, it is not required. A veteran or a claimant can always file an appeal to the CAVC on their own. That is called representing yourself pro se. But, the process of appealing to the veterans’ court, just like any court, can be really difficult to navigate. There are qualified advocates out there that have the experience and the knowledge of how to navigate a Court appeal, including like, what the deadlines are, what are documents they need to file, and what are the types of arguments that the veterans’ court is likely to be persuaded by.
And another thing to keep in mind is just because you are not represented by an attorney does not mean that the VA is not going to be represented by an attorney. The VA is going to be represented by an attorney in every case, regardless of whether the veteran has an attorney or not.
Christian: So, let us say I am a claimant, a veteran, a widow, who wants a representative. How do I choose the right one?
Amy: Well, the first thing is that you have to make sure that the person that you choose is admitted to practice before the Court. If the advocate is not admitted to practice before the Court, the Court will not recognize that person. But you also want to make sure that you are getting somebody who is well versed in the complexities of the VA system, has an understanding of veterans law and has some experience litigating cases before the veterans’ court.
An important thing to keep in mind is that an attorney or an advocate may be accredited by the VA and able to represent people before the VA itself but not admitted to the veterans’ court. These are two separate processes that advocates have to go through and only attorneys who are barred, meaning they passed the bar exam and have been licensed to practice law, can apply to practice before the veterans’ court. Or a non-attorney who is practicing under the supervision of a licensed attorney can be admitted to practice at the veterans’ court. So, you want to make sure that whoever you choose meets one of those two criteria.
Christian: So, Kaitlyn, when you are thinking about getting someone to represent you at the CAVC, what are some potential questions that one could ask of a VA disability attorney?
Kaitlyn: So, obviously, you want to ask some key questions to make sure that this person is fully qualified and is going to act in your best interest. Some suggestions are first and foremost, is this person admitted to the Court, as Amy said. If they are not admitted, they are not going to be recognized and they are not going to be able to represent you.
You might also want to inquire about how long that person has been practicing veterans law. When did they last attend a veterans law training? The law changes very frequently in this area of law, so you want to make sure that you are working with someone who is up-to-date on, you know, the latest changes to the law. Has this person ever argued a case before the CAVC? How many cases do they even have at the CAVC?
You might also want to ask if this person has ever played a role in a presidential decision or does this person practiced at the Federal Circuit, which is the court that oversees the CAVC.
Christian: Right. So those are some great example questions. Of course, that is just a few, you can obviously ask whatever you want of who you are trying to engage to represent you.
But, you know, another question that I want to ask of you, Kaitlyn, is do you have to have the same representative through the whole VA process, right? Because we sort of been talking about the difference between representing at the agency before VA and then representing at the Court. So, can they be two different people or have they had got to be the same person?
Kaitlyn: So, you can have different attorneys over the course of the VA process. A claimant might have one person who represents their case as that goes through VA at the agency and at the Board and then might choose another to pursue their case before the CAVC. Claimants are not obligated to use that same attorney, you know, for both areas. If you already have a VA disability attorney that you are working with, you might want to make sure that you are aware of the scope of the representation.
As we mentioned, not all VA disability attorneys are admitted to practice before the CAVC, and not all VA disability attorneys might have the experience necessary to represent clients before the CAVC. So, if that is the case, you might want to hire a different representative.
Christian: So, one of the things that I would be thinking if I were someone watching this video is how much is this going to cost me? So, you know, first going to speak at CCK, claimants do not pay our advocates to represent them before the CAVC. Our reasonable fees are covered by the Equal Access to Justice Act. So, also referred to as EAJA.
So EAJA is a federal law that allows individuals, small businesses, public interest groups, to obtain representation before the federal government at no cost, in the event that the group or individual is successful. So, if we, if I, you know, I represent clients at the CAVC, if I am able to help my client at the CAVC, we can file for reasonable attorneys fees and we will get paid directly by the federal government for a representation and it does not cost, in that particular hypothetical, would not cost my client anything.
But one thing that I always like to note, EAJA fees do not affect potential back pay, meaning that they would not detract from any retroactive awards or benefits at VA owes a veteran from the effective date of their claim, if they are successful at the agency. So, basically, EAJA does not get taken out of your back pay if there is back pay that you are eventually given.
So, if your appeal is unsuccessful, a representative would not get EAJA because that is just how the statute works. So if they are unable to be successful in your appeal, they would not get any EAJA fees. So, long story short, that is really all we have for you today. Any closing thoughts, Kaitlyn and Amy, before I conclude real quick?
Amy: I would just reiterate how difficult it is to navigate the veterans’ court process on your own because the area of veterans law, especially at the Court level, is becoming more and more sophisticated and complicated. I think it would be really hard for someone who does not have experience at this Court with the law to navigate some of the more complex arguments.
Kaitlyn: I would just echo that, you know. As we mentioned, the VA is going to have an attorney that is representing them. That person is going to be well versed in the law. So, you know, it is very helpful to make sure that you also have a person who is well versed in the law advocating on your behalf and making sure that your best interests are protected.
Christian: Right. Well, thank you for that. Thank you, Caitlin. Thank you, Amy. So, there is more information about the CAVC in the appeals process that can be found on our blog and in our downloadable eBook.
Well, thank you very much for joining us. And be sure to subscribe to our channel for more veterans news and information.
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