You’ve willingly and gladly put your life on the line for your country.
During your service, you developed an illness or injury, or a pre-existing condition worsened while deployed. Now, you can’t work, and trying to lead a normal life is extremely difficult because of your disability.
You’re entitled to disability compensation but it’s not always easy to get.
If the VA – or even the Board of Veterans’ Appeals (BVA) – decides not to award you disability compensation, your next course of action would be to take your claim to the CAVC, the US Court of Appeals for Veterans Claims.
Today, you’ll learn about the CAVC timeline, various CAVC opinions, how to go about e-filing your claim, and how CAVC decisions impact all veterans.
About the CAVC and Your Disability Claim
- How Long Does the VA Have to Make a Decision on Your Claim?
- Why Your Claim Might Be Denied
- Taking Your Case to the BVA
- What is the CAVC?
- What Will the CAVC Do with Your Claim?
- How Long Does the Process Typically Take?
- What Happens at a Briefing Conference?
- Will There Be a Jury?
- Do You Need to Bring Evidence?
- What is a CAVC Reply Brief?
- Will You Need to Pay a Fee?
- What is a Remand?
- Your Case Can Make a Difference for Another Veteran
- The VA Will Have an Attorney – You Need One, Too
How Long Does the VA Have to Make a Decision on Your Claim?
According to the VA, it takes approximately three to four months to decide whether to accept or deny your claim. Whether it’s denied or not is dependent upon a few factors, including:
- Your medical records
- A VA medical examination (not always required)
- The report from the VA doctor who conducted the exam
- The results of diagnostic medical tests
- Statements from you or others who may have some involvement in or knowledge about your claim and medical/service history
- Your military medical records
- Military personnel records
After reviewing all the material, they may deny your claim.
Why Your Claim Might Be Denied
The main reasons why your disability claim could be denied are:
- There isn’t a medical diagnosis of your disability
- There’s no clear proof that your disability is connected to your military service
- There are no examples or evidence of current symptoms of the disability on your claim
Taking Your Case to the BVA
If that happens, your next course of action is to take your case to the Board of Veterans’ Appeals (BVA) and appeal.
The VA appeals process can be lengthy. The whole process can take anywhere from 260 days to over 1,000 days.
Even after that thorough timeline, the VA’s decision can be upheld, and your claim can be denied.
At that point, your next option is to take your case to the highest VA disability court in the US – the Court of Appeals for Veterans Claims (CAVC).
What is the CAVC?
The CAVC is like the Supreme Court of veterans’ disability claim cases. It was established in 1988 by Congress. It is a federal court in Washington, DC that has jurisdictions over decisions made by the BVA.
The CAVC reviews your appeals case de novo – they provide a fresh look to see if the VA broke any laws or Department of Veterans Affairs regulations when they denied your disability claim.
Appealing your case to the CAVC starts with an NOA (Notice of Appeal). Once this is filed, your claim is removed from the jurisdiction of the VA. At that point, it is no longer considered a VA claim. Instead, it’s a CAVC appeal and your case will be on the CAVC docket.
Here one of our VA disability lawyers goes over the questions Woods and Woods, The Veteran’s Firm, is often asked about veterans’ disability claims and appeals.
What Will the CAVC Do with Your Claim?
According to the CAVC, the process for taking your appeals case to them involves the following:
- Notice of Appeal
- Notice of Docketing
- Copy of the BVA Decision
- Record Before the Agency
- Notice to File the Appellant’s Brief
- Appellant’s Brief
- Secretary’s Brief
- Record of Proceedings
- The Decision of the Judges
Multiple motions to dispute or for reconsideration can be made throughout the process, which will create a longer CAVC timeline. However, they are optional, so you might not have to go through such a long process.
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How Long Does the Process Typically Take?
The CAVC timeline can be as short as eight months or as long as three years. On average, the CAVC will come to a decision within eight to 10 months.
Within 30 days of filing your appeal, a copy of the BVA’s decision will be filed with the Court. After that, an Office of General Counsel (OGC) will assign an attorney to represent the VA and they’ll file an appearance.
Within 60 days of the CAVC docket, the VA’s attorney will send you or your representative a copy of the RBA (Record Before the Agency).
During this time, you and your attorney will review everything in your C-File and RBA to make sure there aren’t any inaccuracies or errors. Through this process, it’s important to follow the Court Rules, like CAVC Rule 10, which requires that everything in your C-File at the time of the BVA’s decision is included in your RBA that’s on file at the CAVC. Rule 10 ensures that the Court has a complete record from the lower court and can make an informed decision in your case.
For the first 90-120 days, most of what happens is preparatory work that guarantees that you’ll get a fair hearing.
What Happens at a Briefing Conference?
Another one of the CAVC rules that can reduce the timeline of your case is a CVAC Rule 33 conference, or the Staff Conference. At this conference, you and/or your representative, as well as that of the VA, will conference in-person or via phone.
The goal of this meeting is to see if any refinements can be made to help the Court resolve your case in a timely, accurate, and fair manner.
Will There Be a Jury?
A case that goes before the CAVC will not include a jury. Similar to how the Supreme Court operates, the CAVC reviews your claim/case and makes their CAVC medical claim appeals determination using:
- Written arguments (from you and the Secretary of the VA)
- Case files
Do You Need to Bring Evidence?
Unlike a traditional trial, there’s no opportunity for discovery, a tool that allows each side the opportunity to gather evidence that supports their claim.
Despite not having that tool in a CAVC case, you should get three pieces of evidence from the VA to help your case.
- Your claims file (C-File)
- Your VA medical records
- The Record Before the Agency (RBA), which includes every document in your VA claim file that is available to the BVA at the time a decision was made in your original appeal case
If you work with a VA disability lawyer like Woods and Woods, The Veteran’s Firm, ask if they have backups of all of your documents. We have redundant onsite and offsite backups of all of our clients’ documents, as well as all correspondence with the VA.
Within 60 days of your case being on the CAVC docket, you or your attorney is required by law to receive the RBA from the VA.
A behind the scenes look at who works for you at Woods and Woods, The Veteran’s Firm
What is a CAVC Reply Brief?
According to CAVC rules, each party – you and the VA – will draft briefs that will be reviewed by the CAVC. Your brief will need to include:
- A table of contents
- A table of authorities (cases, statutes, etc. used to back your claim)
- A statement of issues
- A statement of the case
You will have access to the Secretary’s brief and can draft a CAVC reply brief, which is your response to the Secretary’s brief. You’ll need to include a table of authorities.
Will You Need to Pay a Fee?
Currently, there’s a $50 filing fee. In some cases, veterans who cite financial hardship can have the fee waived. You’ll need to fill out a form to assert your hardship while e-filing your appeals claim.
What is a Remand?
A CAVC appeals case has three possible outcomes:
- Reverse – The court favors your claim and reverses the BVA’s ruling
- Affirm – The court agrees with the BVA and VA’s original ruling
- Vacate – The BVA must issue a new decision in addition to fixing any legal errors that caused an erroneous decision
Vacating the Board’s decision is called a remand, and it allows you to reargue your case to the BVA.
Once the Board has received notification of a remand, they’ll send you a letter giving you 90 days to present new evidence in your case to argue the validity of your disability claim. You can choose to waive the 90 days or not. In either case, you’ll need to inform the Board of your intentions.
After the 90 days – or when you waive your right to the 90 days – the Board will close the record and render a new decision.
If you’re denied again, you may be able to take your case to the CAVC a second time. You’ll need to file with the CAVC within 120 days after the BVA renders their decision.
Here, one of our VA disability lawyers talks about what we do when we appeal your case to the Veteran’s Administration.
Your Case Can Make a Difference for Another Veteran
As was mentioned, the CAVC is like the Supreme Court of veterans’ disability claims. Not only are they the “highest court in the land” with which to appeal your case, but the decisions they make in one case can have a bearing on others.
For instance, in a recent CAVC Vet. App case (Eddie D. Ray, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee; Argued September 5, 2018, and Decided March 14, 2019), the judges recalled multiple past cases – some as far back as the 1970s – to make their ruling.
It may feel intimidating to take your case to the CAVC, but the ruling can have a positive impact on veterans that come behind you. If your case is remanded by the Court of Appeals for Veterans Claims, the appellate court will reverse the decision of the BVA. A written decision by the CAVC will instruct that the case be remanded to the BVA to be reconsidered in light of the CAVC’s ruling. Your case will be a standard with which other veterans’ cases are determined.
The VA Will Have an Attorney – You Need One, Too
The VA claims process is deemed to be “non-adversarial.” Nevertheless, Congress outlines that proceedings before the CAVC are, in fact, considered “adversarial.” Therefore, the VA will have an attorney to defend their position. The attorney will present the VA’s case, explaining why they decided to deny disability compensation in your case. The sole purpose of these attorneys is to represent the government’s interests, not yours.
You can and should hire an attorney. You need someone on your side, someone familiar with the laws, the VA, the veterans’ claims process, and the VA disability rating system.
What if you can’t afford an attorney? Under the Equal Access to Justice Act (EAJA), if you are the “prevailing party” at your appeals case, your attorney can petition the CAVC to have the VA pay your legal fees. Your attorney is permitted to ask for reasonable repayment of costs if you win your appeal. The legal limit is 30% of your back pay, but at Woods and Woods, the Veteran’s firm, we only ask for 20% — and only once we win your case. If we don’t win, you don’t pay.
Having a seasoned attorney at your side while before the CAVC will give you more confidence in your case and increase the likelihood that you’ll get the compensation you deserve. Call Woods and Woods, The Veteran’s Firm, to discuss your claim and the prospect of winning an appeals case.
Feeling frustrated about your VA claim? We have a huge staff to help you get the benefits you deserve. Contact us today to schedule a free consultation with our team.
No, now everything is submitted electronically. You don’t even have to have a VA disability lawyer near you. Nothing is in person and everything is handled over the phone or electronically or both.
In most cases, the case will continue on to your beneficiary’s benefit. They might not get ongoing monthly compensation, but they may be able to get backpay in your name.