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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 important 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 veterans 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 the CAVC was established in 1988, the Nation’s Veterans had no court of law where they might appeal the Government’s decisions on veterans benefits. Interestingly, the CAVC is among the few Federal Courts that have been created since the ratification of the Constitution. The CAVC’s principal office is in Washington, D.C. Although the CAVC is authorized to “sit” (travel to different jurisdictions) anywhere in the United States, it does so on an extremely limited basis. But do not fret, you are not required to travel to Washington, D.C. in order to have your case adjudicated. 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 is authorized seven permanent, active judges, and two additional judges as part of an expansion program. Judges are generally appointed for 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’s review of BVA decisions is based on the record before the agency, arguments of the parties presented in a written brief, with oral argument generally held only in cases presenting new legal issues. You must first have a final decision from the BVA before you can appeal to the CAVC. A decision from your VA Regional Office (RO) is not a BVA decision. In order to appeal your BVA decision, you must file, within 120 days of the mailing of your BVA decision, what is called a Notice of Appeal (which is an extremely brief document, requiring only basic personal information and minimal information regarding the BVA decision). You must also submit the $50.00 filing fee (financial hardship waivers can be requested). 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. What that means is that the government will have an attorney arguing for the position of the government (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 in the development of a Veteran’s claim, no longer applies once you appeal to the CAVC.
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Thus, it is imperative that you have an experienced veterans’ disability attorney helping you fight for your benefits. Please note that you do not pay any attorney fees for a CAVC appeal. Rather, if we are successful in securing a favorable ruling on appeal at the CAVC, the government, NOT YOU, pays our attorney fees under the Equal Access to Justice Act. If we are unable to secure a favorable ruling at the CAVC, you still do not pay any attorney fees. Therefore, retaining an experienced attorney is a win-win proposition.
It is important to remember that no new evidence can be submitted at the CAVC level. Once the Notice of Appeal is filed 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 will assign your case to a single judge who then determines whether the case should be heard by a panel of judges. A panel usually hears a case only when the case presents a particularly significant 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 Secretary will also be required to serve the Veteran (Appellant) with the Record Before the Agency (RBA) and 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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Any disputes with the RBA must be raised 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 so critically important.
In cases identified for Staff Conference (also called the Rule 33 Conference), the Court will schedule a conference to occur approximately 30 days prior to the date the Veteran’s principal brief is due. These conferences are utilized in order to facilitate the narrowing or full resolution of the issues to be presented by the Veteran (Appellant) on appeal. However, these are not like traditional litigation-related settlement conferences. In the event the parties are unable to resolve the issues by agreement, the assigned judge will review all evidence and briefs, hear oral argument, if permitted in special circumstances, and then will issue a final decision. The Court may affirm the BVA decision in whole or in 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 decision 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, leaving 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) withdraws 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 be in compliance 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 no motion for reconsideration is filed) or at the expiration of time allowed for reconsideration. If the Veteran (Appellant) still disagrees with the CAVC decision after reconsideration, he or she may file a Notice of Appeal to the US Court of Appeals for the Federal Circuit (although it must be filed with the CAVC) within 60 days after the judgment has issued. 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 back 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.