What to Expect at a Hearing Before the Court of Appeals for Veterans Claims
If your appeal to the BVA fails, you can appeal to the Court of Veterans of Veterans Claims.
If you lose your appeal with the Board of Veterans Appeals (BVA), the next step is to appeal the BVA decision to the U.S. Court of Appeals for Veterans Claims (CAVC).
The CAVC is a special court that was created for veterans and it is not a part of the VA at all; it is an entirely separate institution that is part of the federal court system. (The BVA appeal is the final level of review available within the Department of Veterans Affairs (VA).) The CAVC can review any decision issued by the Board of Veterans Appeals. Most legal disputes between the VA and veterans or their families must be heard at the CAVC.
A Formal Court Process
The process for appeal before the Court is very formal. This is in contrast to the often informal procedures and hearings at the VA regional office, and is even more formal than the process before the Board of Veterans Appeals.
There are many rules governing appeals before the CAVC. It is important to have a lawyer who knows how to navigate these formal processes for you. Read our article about how to hire a VA disability attorney.
When to File an Appeal
Veterans have 120 days from the time the BVA mails the final decision to file a notice of appeal with the CAVC. If you miss the 120 day filing deadline but have a good reason for doing so (such as mental incapacity), the court may still hear your appeal.
You are required to use the court’s notice of appeal form. You can fax the completed form to (202) 501-5848 or mail it to:
Clerk, US Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
It costs $50 to file the notice of appeal, but you can ask for your fee to be waived in the case of financial hardship.
Who Can File an Appeal
Only veterans or their families can appeal cases to the CAVC. If the BVA issues a decision favorable to the veteran, the VA does not have any right to appeal that decision.
New Facts Cannot be Considered
You cannot submit any new evidence to the court on behalf of your appeal. Only the evidence already in the record from the BVA appeal can be considered. The court does not have the authority to review new facts that the BVA did not previously review. This is another reason it is especially important to have the assistance of an attorney to write the legal arguments for your case.
How the CAVC Will Make a Decision
Very rarely will the court hold a hearing before issuing a decision. In most cases, the court will review written briefs provided by the veteran's attorney and the VA. The court will also review the claims file and prior decisions made on the claim.
In most cases, one judge will be responsible for handling the appeal and issuing the decision. But in especially complex cases three or more judges may be involved.
The CAVC Decision
The CAVC can award your benefits, deny your claim, or send your case back to the BVA for a new decision (this is called a remand).
If you lose your appeal with the Court of Appeals for Veterans Claims, your next avenue is to appeal to the Federal Circuit Court. If you lose your case there, the next step is to appeal to the United States Supreme Court.
If you win your appeal with the CAVC, the VA does have the right to appeal the decision.