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Far too often, we represent veterans who should have won at the BVA, but lost due to substandard representation. At the CAVC, failures on behalf of the VA needs to be pointed out and addressed. Do not risk being denied again due to substandard representation. At the CAVC, it is time to hire legal counsel.
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If you have received an unfavorable ruling from the Board of Veterans’ Appeals (BVA), you have 120 days to appeal to the U.S. Court of Appeals for Veterans Claims (CAVC). Before discussing the appeals process at the CAVC, it is essential to understand where and how the CAVC began and its purpose for being.
On November 19, 1988, the Veterans’ Judicial Review Act under Article I of the U.S. Constitution created the new veteran’s court, the United States Court of Veterans Appeals. On March 1, 1999, the Veterans Programs Enhancement Act of 1998 changed the Court’s name to the name it now bears, the U.S. Court of Appeals for Veterans Claims (CAVC). The CAVC is part of the United States judiciary and is NOT part of the Department of Veterans Affairs (VA).
Until Congress established the CAVC in 1988, the Nation’s Veterans had no court of law where they might appeal the government’s decisions on veteran benefits. Interestingly, the CAVC is among the few Federal Courts created by Congress since the ratification of the Constitution. The CAVC’s principal office is in Washington, DC. Although the CAVC is authorized to “sit” (travel to different jurisdictions) anywhere in the United States, it does so on a minimal basis. But do not fret; Congress does not require you to travel to Washington, DC, to adjudicate your case. The CAVC will accommodate your hearing, if necessary, through video conference. In fact, in establishing the CAVC, for only the sixth time in the history of the United States, Congress established a court of national jurisdiction with no geographical limits. The CAVC has authorized seven permanent, active judges and two additional judges as part of an expansion program. The CAVC generally appoints Judges to 15-year terms, and each judge has the option upon retirement to agree to be available for further service as a “recall-eligible Senior judge.”
The CAVC has exclusive jurisdiction over decisions from the BVA. The CAVC bases its findings on a review of BVA decisions on the record before the agency, the parties’ arguments presented in a written brief, with oral arguments generally held only in cases presenting new legal issues. You must have a final decision from the BVA before appealing to the CAVC. A decision from your VA Regional Office (RO) is not a BVA decision. To appeal your BVA decision, you must file, within 120 days of the mailing of your BVA decision, a Notice of Appeal (which is a highly brief document requiring only basic personal information and minimal information regarding the BVA decision). You must also submit the $50.00 filing fee (appellants can request financial hardship waivers). Although the rules do not require a Veteran (Appellant) to be represented by an attorney, it is highly recommended you retain counsel for your CAVC case. Unlike the previous stages of your appeal (at both the RO and the BVA), the CAVC matter is not a “non-adversarial” proceeding. That means the government will have an attorney arguing for the government’s position (the VA) and against you! The government’s attorney will attempt to attack the credibility of both the Veteran and any evidence supporting the Veteran’s position. Significantly, at the CAVC level, there is no assistance from the government. The VA’s duty to assist, which at the RO level can help develop a Veteran’s claim, no longer applies once you appeal to the CAVC.
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Thus, you must have an experienced veterans’ disability attorney helping you fight for your benefits. Please note that you do not pay attorney fees for a CAVC appeal. Instead, if we successfully secure a favorable ruling on appeal at the CAVC, the government, NOT YOU, pays our attorney fees under the Equal Access to Justice Act. You still do not pay attorney fees if we cannot secure a favorable ruling at the CAVC. Therefore, retaining an experienced attorney is a win-win proposition.
It is important to remember that appellants cannot submit any new evidence at the CAVC level. Once you file your Notice of Appeal with the CAVC, the Clerk will send a Notice of Docketing assigning the case a number and providing instructions for both parties. The CAVC typically assigns your case to a single judge who then determines whether a panel of judges should hear the case. A panel usually hears a case only when the case presents a fundamental legal question or when a case raises a legal question the Court has not yet considered.
Next, the Notice of Docketing will instruct the Secretary to file with the Court and serve on the Veteran (Appellant) a copy of the BVA decision within 30 days. The Notice of Docketing will instruct the Secretary to serve the Veteran (Appellant) with the Record Before the Agency (RBA). In addition, the Secretary must file a notice with the Court certifying that the RBA has been served within 60 days. The RBA contains the following information:
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Appellants must dispute issues with the RBA within 14 days. Again, remember that the CAVC does not receive any new evidence. Once both parties agree on the content of the RBA, the Clerk will issue a notice instructing the Veteran (Appellant) to file a brief within 60 days. The Veteran must file a brief within 60 days. The Secretary must file a response brief within 60 days after service of the Veteran’s brief. The Veteran may then file a reply brief in response to the Secretary’s brief. Yes, this can get confusing. That is why consulting an experienced veterans’ disability attorney is critically important.
In cases identified for Staff Conference (also called the Rule 33 Conference), the Court will schedule a conference approximately 30 days before the Veteran’s principal brief is due. CAVC utilizes these conferences to facilitate the narrowing or complete resolution of the issues presented by the Veteran (Appellant) on appeal. However, these are not like traditional litigation-related settlement conferences. If the parties cannot resolve the issues by agreement, the assigned judge will review all evidence and briefs. The assigned judge may also hear oral arguments if permitted in exceptional circumstances and then issue a final decision. The Court may affirm the BVA decision in whole or part, meaning the CAVC agreed with the BVA and will uphold all or part of its decision. In the alternative, the CAVC may reverse (overturn), vacate (cancel), or remand the conclusion of the BVA in whole or in part, sending it back for action by the BVA or RO.
The CAVC may also dismiss the appeal. Dismissing the appeal would leave the BVA decision in effect if the CAVC did not have the jurisdiction (or legal authority) to consider the appeal, if the Veteran (Appellant) did not follow the Court’s Rules of Practice and Procedure, or if the Veteran (Appellant) withdrew the appeal. If the CAVC remands your BVA decision (which means the Court agreed the Board erred), then your case will be sent back to the BVA with the directives and instructions as to what the BVA must do to comply with the CAVC decision.
After the decision of the CAVC, the Veteran (Appellant) may file a motion for reconsideration within 21 days. The CAVC enters judgment on its docket 21 days after it issues its decision (if the appellant files no motion for reconsideration). Or at the expiration of the time allowed for reconsideration. Suppose the Veteran (Appellant) still disagrees with the CAVC decision after reconsideration. In that case, they may file a Notice of Appeal to the US Court of Appeals for the Federal Circuit.
They must file The Notice of Appeal with the CAVC within 60 days after the CAVC issues its judgment. The CAVC will then forward the Notice of Appeal and filing fee to the Federal Circuit. Significantly, under the newly implemented Veterans Appeals Improvement and Modernization Act of 2017 (AMA), an alternative option has been given for those who are unsuccessful at the CAVC level. A Veteran (Appellant) may submit a Supplemental Claim with new and relevant evidence at the RO level. You have one year to file a Supplemental Claim from the date of the CAVC decision. This new option allows a Veteran (Appellant) to keep a claim alive so long as new and relevant evidence is submitted.