What is the Court of Appeals for Veterans Claims?
The Court of Appeals for Veterans Claims (CAVC) is a federal court located in Washington D.C. that was established by Congress in 1988 to ensure the Department of Veterans Affairs (VA) follows all applicable laws when deciding benefits claims. Specifically, the CAVC has jurisdiction over decisions made by the Board of Veterans’ Appeals (BVA). Veterans can appeal unfavorable Board decisions to the CAVC for review, and the CAVC can determine if there was a legal error in the Board’s decision.
It is important to note that the CAVC is not a part of the VA, so it has no bias toward the VA. This allows veterans to receive objective decisions on their appeals.
What is the Court Process?
Before we get into the details, it is necessary to emphasize that the Court process can be lengthy and complex. It is always recommended to hire an attorney to help with this process. An attorney will be responsible for navigating the Court procedures and meeting all necessary deadlines. However, whether a claimant hires an attorney or not, he or she should understand the process before filing a Notice of Appeal.
Additionally, please note that a case may be resolved at almost any time during the Court process. This highlights the advantages of hiring an attorney. An attorney can articulate the legal errors committed by the Board and can work with the VA attorney to negotiate a beneficial resolution for the claimant. This is often done through a “Joint Motion for Remand.”
Lastly, the procedures for “Staff Conferences” (often referred to as “Rule 33 Conferences”) are not included below. Basically, the Court may order the Appellant’s representative and/or self-represented Appellants to participate in a staff conference with the VA attorney, in person or by telephone, to consider refinement of the issues and such other matters that may help the Court resolve the case. When necessary, the Court will enter an appropriate order to control future proceedings. In this staff conference, parties are strongly encouraged to discuss settlement or alternative disposition of the matter. For more information on Staff Conferences, click here.
First Step: File Notice of Appeal
First, a claimant needs to file a “Notice of Appeal” to the Court within 120 days of date on the Board decision. A claimant who files the appeal is called the “Appellant.” Technically, the Appellant is bringing legal action against the Secretary of Veterans Affairs, who is also referred to as the “Secretary” or “Appellee.”
Second Step: Notice of Docketing
Once the Notice of Appeal is filed, the Clerk will send a Notice of Docketing containing the Court’s case number and instructions for both parties. The Court’s case number is different from the VA’s claims file number.
The Notice of Docketing instructs the Secretary to serve on the Appellant 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:
- All materials contained in the claims file up to the date of the Board decision.
- Any other material before the Secretary and the Board that is relevant to the issues listed in the Board decision on appeal.
- A list of any record matter that cannot be duplicated.
At this phase, the Appellant has the OPTION to dispute the RBA. The Appellant may file a motion to dispute the RBA within 14 days if there are documents missing in the RBA that are pertinent to the appeal. However, it is important to note that the Court will not accept new evidence.
Third Step: Appellant’s Brief
Once both parties agree on the content of the RBA, the Clerk will issue a notice instructing the Appellant to file a brief within 60 days.
The Appellant must file a brief within 60 days. Pro se Appellants may use the Informal Brief form sent by the Clerk. Instead of attaching copies from the RBA, an Appellant should refer to specific pages in the RBA. A brief may not exceed 30 pages.
Fourth Step: Secretary’s Brief and Appellant’s Optional Reply
Thereafter, the Secretary must file a brief within 60 days after service of the Appellant’s brief.
The Appellant may file a reply brief in response to the Secretary’s brief. The reply brief may not exceed 15 pages.
Fifth Step: Record of Proceedings and Appellant’s Optional Dispute
The Secretary must file and serve the Appellant the Record of Proceedings (ROP) within 14 days after service of the Appellant’s reply brief or within 14 days after the reply brief was due (if a reply brief was not filed). The Record of Proceedings (ROP) is a collection of materials, which come only from the RBA, that is required to decide the appeal. Only documents that are relevant to the issues decided by the BVA that are on the appeal are included in the Record of Proceedings (ROP).
The Appellant may file a motion to dispute the ROP within 14 days if there are documents missing in the ROP that are pertinent to the appeal.
Sixth Step: Court Releases a Decision and Optional Motion for Reconsideration
Finally, the Court will release a decision. Cases may be decided by a single judge or, if the case presents a particularly significant legal question with broad application to more than one veteran, or presents a question of “first impression,” meaning that the case presents a new legal question not considered by the Court previously, the case may be decided by a panel of three Judges or the en banc court (all nine Judges).
The Court may affirm the Board decision in whole or in part, meaning the Court agrees with the Board and will uphold all or part of the decision. In the alternative, the Court may reverse (overturn), vacate (cancel), or remand the Board decision in whole or in part, sending it back for action by the Board or VA regional office. The Court may also dismiss the appeal, leaving the Board decision in effect, if the Court does not have the jurisdiction (or legal authority) to consider the appeal, if the Appellant has not followed the Court’s Rules of Practice and Procedure, or if the Appellant withdraws the appeal.
After the decision of the Court, the Appellant may file a motion for reconsideration within 21 days (or 51 days if the Appellant, practitioner, or representative is outside the United States, Puerto Rico, or Virgin Islands).
Seventh Step: Court Enters Judgment and Optional Appeal to Higher Court
The Court 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 under Rule 35 of the Court’s Rules of Practice and Procedure.
If the Appellant still disagrees with the Court’s decision after reconsideration, he or she may file a Notice of Appeal to the US Court of Appeals for the Federal Circuit through this Court, the US Court of Appeals for Veterans Claims, within 60 days after the judgment has issued. The Court will forward the Notice of Appeal and filing fee to the Federal Circuit. The case at this Court will be stayed pending the decision of the Federal Circuit.
If you are considering filing a Notice of Appeal or you have already begun the Court process, we may be able to represent you in your case. Contact our firm for a free case evaluation by clicking here. Our attorneys are experienced advocates that have extensive knowledge of the Court process and applicable rules.