Home → Appealing A VA Claims Decision → What To Expect After Filing A Notice Of Disagreement → Post-Board of Veterans Appeals (BVA) Appellate Process
OK. You have just received a copy of the BVA’s decision in your appeal. Hopefully, the BVA has overturned the VARO’s decision and granted your benefits in full. But suppose that the BVA improperly affirms the VARO’s decision without granting benefits or commits some other error that results in less than a full award of benefits.
Since the BVA is the last stop at the VA for claims decisions, where can you go? Prior to 1988, a claimant who was denied at the BVA simply had to accept that decision. The BVA had the last word. In 1988, however, Congress passed a law that created a special federal court to consider appeals of adverse BVA decisions. The U.S. Court of Appeals for Veterans Claims (CAVC), formerly the Court of Veterans Appeals, has exclusive jurisdiction to review appeals of final BVA decisions. This includes claims denials, partial grants of benefits and inadequate awards of benefits, but does not include remand decisions.
TIP: Before filing a court appeal, there is still one last opportunity to have the BVA reconsider its decision. The appellant (i.e., the person filing the appeal) can request the BVA to reconsider its decision. Whether a motion for BVA reconsideration granted is at the BVA Chairman’s discretion. The request for reconsideration must be in writing and must specify an “obvious error of fact or law” that led to the improper decision. Again, you must point to evidence of the record or a specific law or regulation that you believe the BVA either ignored or misapplied. Newly discovered service medical records or previously unconsidered changes in service records by a board for the correction of military records are examples of evidence that can support a BVA reconsideration. If the Chairman grants reconsideration, the original BVA decision is nullified and a new decision will be issue based on the reconsideration request. If the request is denied, it’s time to go to court!
Similar to the requirement of filing a substantive appeal to the BVA, you must file a notice of appeal (NOA) with the CAVC to confer jurisdiction on the court. The deadline for filing a NOA with the CAVC is 120 days from date that the BVA mails its decision to you. The mailing date is legally presumed to be the same date that appears on the front of the BVA decision. The NOA should be filed with the CAVC, not the VARO or BVA.
The Court’s address is:
Clerk, US Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
The NOA must be post-marked by the U.S. Postal Service (rather than self-metered or shipped privately) within the 120-day period in order to be considered timely. If the deadline is approaching, you may fax the NOA to the CAVC clerk’s office at (202) 501-5848.
There is a specific NOA form that is available at the CAVC’s website, www.vetapp.uscourts.gov. You do not need to argue your case in the NOA, but you will need to indicate the date of the BVA decision that you wish to appeal. There is a $50 filing fee for appealing to the court, which can be waived if payment would cause financial hardship. The court’s Form 4 (Declaration of Financial Hardship), is also available on its website. Either the filing fee or the declaration must accompany the NOA.
If you are unrepresented at the CAVC and miss the NOA filing deadline, there are limited rules that allow the court to consider the circumstances leading to the late filing. For example, the court will “equitably toll” the filing deadline if the appellant’s medical or physical condition prevented the NOA’s timely filing.
You do not need to have an attorney to represent you before the CAVC, although it is highly advisable. The non-adversarial relationship between a claimant and the VA ends with the BVA’s decision. Once an appellant literally makes a “federal case” out of it, the parties become legal adversaries and the VA’s attorneys go to work. If you do not have an attorney when you file your NOA, the CAVC will provide you with information about the Veterans Pro Bono Consortium (www.vetsprobono.org). The Consortium can review your appeal for judicial merit and, if it agrees that the BVA decision is in error, it will assign your appeal to one of its volunteer attorneys without any charge or fees.
The CAVC process often takes a year or more to complete. Some cases have actually gone on for two to three years. Once the parties agree on the contents of the record on appeal (which can take many months), the parties will file their initial, and possibly supplemental, briefs. Unrepresented appellants are allowed to file an informal brief on the court’s designated form. It is possible that the CAVC could schedule the appeal for oral argument, although it will issue a call for attorneys to volunteer to represent the appellant in such cases, or it will ask interested parties to file amicus curiae (friend of the court) briefs in favor of the appellant and to appear at oral argument.
If the VA’s attorneys agree that the BVA erred in its decision, they may contact the appellant or appellant’s legal counsel, if any, to discuss a joint motion for the court to remand the appeal to the BVA for readjudication. A joint motion for remand is not a legal settlement, but, rather, the VA’s acknowledging the error and both parties’ requesting that the Court allow the VA to correct the defect without the need for full briefing and a formal decision by the Court.
On appeal, the court can reverse the BVA decision and grant benefits, affirm the BVA decision and continue the denial or partial grant, or it can remand the appeal to the BVA. Typically, the CAVC will remand on the narrowest possible grounds, meaning that it will not address all assignments of error if one will do.
If an appellant wants to appeal an adverse CAVC decision, he or she must file an appeal to the U.S. Court of Appeals for the Federal Circuit. At this point, the attorneys for the U.S, Department of Justice take over representing the government. The Federal Circuit is not the best place for an appellant to be unrepresented by legal counsel. A lawyer is almost always necessary to prevail at this level.
