Appealing the Denial of Benefits
A Note About the Time Involved to Appeal a VA Denial
The VA appeals process is lengthy. According to the fiscal year 2011 Annual Report of the Chairman, Board of Veterans’ Appeals, the average claimant waits 883 days from the time he files a Substantive Appeal until a final BVA decision. In Veterans for Common Sense v. Shinseki, 645 F.3d 845 (9th Cir. 2011), aff’d in part, rev’d in part, remanded with instructions to dismiss, 2012 U.S. App. LEXIS 9230 (9th Cir. May 7, 2012), the Court reported it could take anywhere from 261 days to 1,000 days for the RO to issue an SOC.
The Initial Regional Office Decision
The VA is required to notify the claimant and his representative in writing of any adverse decision. See M21-1MR, Part III, Subpart I, 1.7.b. The VA is required to include in its notice:
- The reasons for the denial
- A summary of the evidence considered
- Notice of the claimant’s appellate rights.
See 38 C.F.R. § 3.103(b); 38 U.S.C. § 5104.
Usually, the notice will be a cover letter with the rating decision attached. See attached sample. Recently, however the VA has been utilizing a simplified notification letter to serve as the rating decision. It contains less detail. If you receive one of the abbreviated notice letters, it is advisable to request a complete copy of the actual rating decision.
Although the VA is required to explain the reasons for its decision in the Statement of the Case, the initial rating decision is still the primary document.
In Ingram v. Nicholson, the Court stated that “a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent ‘claim’ for the same disability.” 9 Vet. App. 232, 243 (2007).
Even if the VA never mails notice of a decision to a claimant, if the claimant or his representative later receives a copy of the VA adjudication, the time to respond would begin run. See Mathews v. Principi, 19 Vet. App. 23, aff’d on reconsideration, 19 Vet. App. 202 (2005); aff’d without written opinion, 2006 U.S. App. LEXIS 9745 (Fed. Cir. 2006). This would typically involve a situation where the claimant or his representative requests an updated copy of the claims file and discovers the adjudications for which notice was never given.
The Rating Decision
If the rating decision is not attached to the notification letter, the attorney should request a copy of the rating decision. It is crucial that the attorney understand the precise basis for VA’s decision.
What Decisions Can be Appealed?
Any claimant for benefits administered by VA has a right to appeal adverse decisions by the agency. See 38 U.S.C. § 7104. In general, the following types of claims are appealable:
- Compensation benefits
- Pension benefits
- Medical care eligibility
- Medical expense reimbursement
- Waiver of recovery of overpayment
The primary exceptions to a claimant’s appellate rights concern medical decisions. For example, a claimant may complain about medical decisions concerning his care and treatment, such as the types of therapy, medications, and treatment protocol. Most of these issues that are within the domain of the medical judgment of a treating physician are outside the scope of the BVA’s jurisdiction. See 38 C.F.R. § 20.101(b). In general, the Board’s appellant jurisdiction extends to issues concerning eligibility for hospitalization, outpatient treatment, nursing home or domiciliary care, for prosthetic devices, canes, wheelchairs, back braces, etc. On the other hand, medical determinations such as appropriateness of certain types of care are “not adjudicative matters and are beyond the Board’s jurisdiction.” Id.
A claimant also may not appeal to the BVA or CAVC issues that are solely committed to the Secretary’s discretion. See Werden v. West, 13 Vet. App. 463 (2000). For example, a claimant could not appeal the manner in which the Secretary disburses a grant. See Werden at 467-68.
THE NOTICE OF DISAGREEMENT
The first step in the appeals process, once a claimant receives an adverse decision, is to file a Notice of Disagreement (“NOD”). The filing of an NOD is required to begin the appeal process. See 38 C.F.R. § 20.201 (2012).
The NOD is defined as a “written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency or original jurisdiction and a desire to contest the result.” 38 C.F.R. § 20.201 (2012).
The terms of the NOD must be ones that “can be reasonably construed as expressing disagreement with that determination and a desire for appellate review.” Id. The claimant cannot simply express disagreement. He must indicate a desire to seek appellate review. The requirement that the NOD express a desire for appellate review was upheld in Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002), cert. denied, 537 U.S. 1701 (2002).
There is no VA form for an NOD and the Court has applied a liberal reading to the correspondence of claimants. As such, there is no specific language so long as it expresses disagreement and an intent to seek appellate review.
However, if there are multiple issues, the claimant must specifically delineate which of the determinations he disagrees with. For example, if the rating decision denied claims for PTSD, a low back disorder, and bilateral hearing loss, and the veteran only wanted to appeal the PTSD claim, he must specifically indicate that he wants to appeal only the PTSD claim.
Basic requirements for an NOD:
- Must express disagreement with an adverse determination
- Must delineate specific issues in a multi-issue case
- Must express an intent to seek appellate review
- Must be in writing
Where and When to File the NOD
The claimant must file the NOD with the VA office that sent the notice of the decision. See 38 C.F.R. § 7105. If the claimant’s case has been transferred to another regional office, then the claimant must file his NOD with the RO that has jurisdiction over the file. See 38 C.F.R. § 20.300 (2012). If there was a denial relative to entitlement to treatment from a VA medical facility, then the claimant should send his NOD to the VA medical center that made the determination with a copy to the appropriate RO.
The deadline to file the NOD is one year. This means that a claimant must file his NOD within one year from the date that the VA mailed notice of the unfavorable decision. The date on the notice letter is considered the date of mailing. In practice, do not wait until the last day of the one-year period to file the NOD.
As noted in 38 U.S.C. § 7105(b)(1), the postmark determines the date of filing. So long as the NOD is postmarked on or before the expiration of the one-year period, it will be considered timely. When calculating the time, the first day is excluded and the last day included. Like many other filing deadlines in other venues, if the due date follows on a Saturday, Sunday or legal holiday, the deadline would be the next business day. See 38 C.F.R. § 20.305(b).
In addition, the common law mailbox rule applies when assessing the timeliness of the filing of an NOD. With respect to the common law mailbox rule, the Federal Circuit observed that a letter proven to be either placed in the post office or delivered to the postman is presumed to have reached its destination in the normal course of business of the post office. See Savitz v. Peake, 519 F.3d 1312, 1315 (Fed. Cir. 2008).
It is very important that the NOD be filed on time. If the claimant misses the deadline, the adverse decision becomes final. If the decision becomes final, the claimant must file a reopened claim with the RO, and under these circumstances, the effective date of any subsequent award would be the date the VA received the re-filed claim.
There is an exception to the one-year requirement. If there are simultaneously-contested claims, then there is a 60-day deadline. Simultaneously-contested claims are where opposing claimants are competing for the same benefits. Another example would be an adverse fee determination wherein VA refuses to withhold the 20 percent legal fee.
Practical Tips for Drafting the NOD
- Include “NOTICE OF DISAGREEMENT” in bold letters at the top of the correspondence.
- State that you want a Statement of the Case so that you may appeal to the BVA
- Identify the exact adverse decision being appealed. For example, the “April 15, 2012 rating decision”.
- Include the claimant’s name
- Include the claimant’s VA file number
It is important to use broad language when drafting an NOD. Language that is too specific could negate any inferred issues or other issues reasonably raised by the evidence of record but not specifically mentioned.
It is also a good idea to request de novo review by a decision review officer.
Strategy Once the NOD is Filed
Once the NOD is filed and the appeal process started, it is advantageous to submit argument and additional evidence. Typically, as attorney advocates we are getting involved in claims after the NOD is filed, and the claims files have not been developed properly. As such, a comprehensive review of the file should be done, and then additional evidence obtained. The type of evidence needed is usually determined by the reason for the initial denial. For instance, if the service medical records establish an in-service event and the veteran has a current disability, then the VA denial would be predicated on the absence of a medical nexus. Accordingly, the advocate should obtain the appropriate expert medical opinion on the nexus issue. The additional evidence should be submitted with argument. Persuasive argument and additional evidence could result in VA changing the denial to a grant of benefits.
If the VA grants service connection on appeal after a claimant files an NOD, then the advocate must consider filing an NOD as to the downstream issues, such as the assigned rating and the effective date. If the rating decision grants service connection but assigns less than the maximum rating and the wrong effective date, then the claimant must file an NOD as to the assigned rating and effective date.
THE DECISION REVIEW OFFICER PROCESS
Once the NOD is filed, a claimant may request that his rating decision be reviewed by a senior VA employee known as a Decision Review Officer, or DRO. The review of a DRO is de novo. It is important to remember that the DRO process is optional and is available for any rating decision where less than the full benefit has been awarded.
If the claimant does not elect the DRO, his case will proceed as a traditional appeal. There is a window of opportunity for electing the DRO. It is recommended that if the claimant wishes DRO review, he should request it in his NOD. Otherwise, VA will send the claimant an election letter, advising him of the option for DRO review and affording him 60 days to make an election. If the claimant does nothing within the 60-day period, the appeal will automatically proceed as a traditional appeal.
The traditional appeal process involves the issuance of a Statement of the Case and a substantive appeal to the BVA.
If the DRO has been selected he or she will review the evidence and applicable laws de novo and make a new decision. The DRO should not give deference to the previous rating decision. The DRO also has the authority to order additional development, conduct a hearing, if requested, or hold an informal conference. See 38 C.F.R. § 3.2600(a).
The DRO cannot overturn the favorable portion of the previous rating decision, unless the favorable portion of the prior decision contained clear and unmistakable error (“CUE”). Under the CAVC’s jurisprudence, evidence that is “clear and unmistakable” must be undebatable. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).
Limitations on the DRO
The DRO cannot “bargain” with the claimant. The VA adjudications manual states in relevant part:
A DRO cannot make a bargain with an appellant or his/her representative by requesting or requiring him/her to withdraw a claim or take any action in exchange for the granting of any benefit.
Manual M21-1MR, Part I, 5.C.12.h.
Practice Tip: The DRO’s know the people from the rating team. They generally will not overturn their colleague unless you give them something different to form the basis of a new decision. We recommend additional development of evidence and argument at the DRO stage.
The DRO Hearing
Some attorneys view the hearing as an important strategic tool in personalizing the claim before the VA adjudicators. It provides the VA adjudicators with an in-person opportunity to assess the claimant’s credibility. In practice, however, if any aspect of the claim is predicated on the credibility of a claimant (absent a combat veteran situation under 38 U.S.C. § 1154(b)), then as a practitioner you must be realistic about the chances of success. The VA does not like to grant claims based solely on veteran’s lay statements.
If the claimant wishes a hearing, then it should be done after the initial rating decision but before the Substantive Appeal (VA Form 9) is filed.
The VA hearings are informal, and take place in a non-descript room with microphones and a tape recorder. The decision maker, the claimant, his representative and any witnesses are usually the only ones allowed into the room. Others may be present upon consent of the claimant. The DRO generally does not ask too many questions, but he/she has a duty to explain the law or suggest the introduction of missing evidence. See 38 C.F.R. § 3.103(c).
The Statement of the Case
The next step in the process after the NOD and DRO review is the VA’s issuance of a Statement of the Case (“SOC”). Unless the disagreement is resolved in the claimant’s favor, the VA must issue an SOC. When the VA sends the SOC it is accompanied by information as to how to file a Substantive Appeal.
The SOC is intended to afford the claimant with an understanding of the reasons for the VA’s decision. The idea is that a detailed understanding of the basis for the prior denial will assist the claimant in preparing his Substantive Appeal. In essence, the SOC is a readjudication of the claim.
According to the 2011 Fiscal Year report of the Chairman of the Board of Veterans Appeals, it takes an average of 257 days after the NOD is filed for the VA to issue the SOC.
The SOC is often many pages of boilerplate law and regulations. The SOC is required to include a summary of the applicable laws and regulations, as well as a summary of the evidence. The SOC should include an application of the laws to the facts.
The SOC should be compared with the evidence of record. It’s not always accurate.
The Substantive Appeal (VA Form 9)
The Substantive Appeal or VA Form 9 must be filed within 60 days of the date of the mailing of the SOC or within the remainder of the one-year period from the mailing of the notice of the rating decision, whichever is later. See attached sample form. The purpose of the Form 9 is to transfer jurisdiction of the appeal to the BVA. If a claimant fails to file a timely Form 9, then the rating decision will become final. An extension of time is available if the claimant has “good cause.” See 38 C.F.R. § 20.303.
In the Form 9, the claimant will place VA on notice of the arguments and contentions as to VA error. It is also his opportunity to request a BVA hearing. The form will also require the claimant to identify which of the issues he is appealing.
In order to avoid any problems, it is recommended that you file the Form 9 as soon as possible. As with the NOD, if the Form 9 is postmarked on or before the 60th day it will be considered timely. See 38 C.F.R. § 20.305(a).
With any important submission to a VA regional office, it is recommended that it be sent via certified mail. The VA is notorious for misplacing mail, and the certified mail will enable the attorney to prove VA’s actual receipt.
There is an exception to the 60-day rule: if the claimant submits new evidence within the one-year appeal period and the VA issues a Supplemental Statement of the Case (SSOC), then the claimant would have 60 days from the date of the SSOC to file his Form 9. Thus, even if the claimant missed the deadline for filing his Form 9, if the VA issues an SSOC in response to evidence received within the one-year appeal period, the claimant would have 60 days from date the SSOC was mailed to file the Form 9.
Supplemental Statement of the Case (SSOC)
The VA issues an SSOC in response to evidence submitted after the issuance of the SOC. There may be many SSOC’s in a case due to the continual submission of evidence before the case is sent to the BVA. If the claimant wishes to respond to the SSOC, he must do so within 30-days from the date it was mailed. However, there is no requirement that a claimant respond to the SSOC.
Important Considerations Regarding the Form 9
The Substantive Appeal is almost always filed on a VA Form 9. However, the Substantive Appeal can be in the form of a letter so long as it contains the required information. See 38 C.F.R. § 20.202.
If the attorney intends to submit a brief later in the process, he need not present extensive argument at the time the Form 9 is submitted. However, in order to preserve all potential issues, the advocate should use broad and inclusive language in the Form 9. But the claimant must provide some indication that he wishes to raise a particular issue for appeal. In the case of Sondel v. Brown, 6 Vet. App. 218 (1994), the CAVC observed that the claimant need not make an express or detailed indication, but his Form 9, other documents, or oral testimony must provide some suggestion that he intends to raise a particular issue before the BVA.
In the event that the Substantive Appeal is deemed inadequate by the BVA, the appeal could be dismissed. Thus, to avoid this risk, it is recommended that the claimant provide an express indication as to the issues he wishes to raise on appeal, as well as the broad and inclusive language necessary to preserve issues or legal theories that were not previously mentioned.
Finally, the Form 9 asks the claimant to specify whether he wants to have a hearing. There are several types of hearings:
- Travel Board hearing: This is an in-person local hearing at the RO by the Veterans Law Judge assigned to the case.
- Washington, D.C.: This is where the claimant travels to Washington, D.C. to appear at the BVA before the judge assigned to the case.
- Videoconference hearing: This is where the claimant would testify via videoconferencing at the local RO.
The claimant is permitted to submit his argument and evidence at any time before the case is certified to the BVA. Even then, the claimant is afforded 90 days from the date the of the case’s certification to the BVA to submit additional evidence and argument. In general, once the Form 9 is filed, then the attorney should review the file to determine if there is any additional development that needs to be done, and then prepare the final brief and evidentiary submission.
Certification to the BVA
Once the timely Form 9 is filed, then the RO will certify the case to the BVA using a VA Form 8, which is known as a Certification of Appeal. During the time leading up to the Certification, the VA will afford the claimant’s representative an opportunity to submit a formal brief. The current regulations rely on the Form 8 for administrative purposes and it does not necessarily define all the issues that are on appeal.
The BVA Hearing Process
Most claimants request a Travel Board hearing when they file their Form 9, but can request it at any time after the Form 9 is filed and through the end of the 90-day period that begins when the case is transferred to the BVA. The claimant will receive a letter indicating that he or she has 90 days to submit new evidence or change representatives.
STRATEGIES FOR THE BVA HEARING
The claimant and the attorney should meet prior to the hearing, review the claims file, and make certain that the file contains all the necessary evidence to satisfy the legal elements of proof. In addition, the attorney and the claimant should review and prepare the testimony and the evidence that will be presented. The hearing is nonadversarial. This means that there is no opposing side to offer competing evidence or to cross-examine witnesses. The Federal Rules of Evidence do not apply.
The primary issues of a nexus and an in-service occurrence should hopefully be established with the documentary evidence. Thus, it is a good idea to focus on the issues where lay evidence can buttress the case. For instance, on the issue of continuity of symptomatology, lay evidence can be very useful, and the attorney should make certain this testimony is elicited during the hearing.
In terms of basic procedure, when the claimant’s case is called, he and his attorney would go to the hearing room. Prior to the claimant and any witnesses being sworn in, an informal off-the-record discussion takes place. This informal discussion deals with the issues on appeal and what documentary evidence will be submitted.
Next, the attorney will provide an opening statement. The attorney should summarize the issues and what the testimony will show. He should also comment on the relevant legal requirements and discuss why the evidence shows entitlement to the benefits sought.
Following the opening statement, the attorney should lead the claimant and any witnesses through direct examination. The Veterans Law Judge (“VLJ”) will often then have an opportunity to ask some questions of the claimant to elicit information. The VLJ’s questioning should not be in the form of “cross-examination.”
Finally, the attorney can offer a closing statement.
REVIEW AND ANALYSIS OF BVA DECISIONS
In order to assess the merits of a potential appeal to the CAVC, the attorney should be familiar with the most common areas of Board error. In general most cases with remandable error will fall into two basic categories: (1) reasons or bases violations, and (2) duty to assist violations. Below is a summary of 10 common errors in BVA decisions.
The Board fails to consider favorable evidence. The Board is not required to decide the case in the claimant’s favor. But it cannot reject favorable evidence without a valid explanation. If the Board ignores or mischaracterizes favorable evidence that is material, then you may be able to successfully argue for a remand.
The Board fails to properly analyze favorable medical reports. The Board will often improperly reject a private doctor’s opinion. The Board may reject the private doctor’s report solely because he did not state that he reviewed the claims file. It is important to remember that the Board cannot reject a private doctor’s report solely because he did not say that he reviewed the claims file. The Board may also reject a private doctor’s opinion if it is based on the veteran’s own statements about his medical history. The Board cannot reject the doctor’s report just because it’s based on the veteran’s statements unless the veteran’s statements are found not to be credible.
The Board relied on an inadequate VA medical exam. You will frequently notice that the VA will aggressively scrutinize and attack the favorable opinions of private doctors, but then bend over backwards to accept the negative opinions of their own doctors. Because VA tends to side with its own doctors, they frequently rely on negative reports that are not adequate for rating purposes. You want to analyze the VA doctor’s report to make sure the facts upon which he bases his conclusions are accurate. If he assumed certain facts in order to reach his conclusion, but the evidence in the file shows he is wrong about his factual assumptions, his report can be attacked as being inadequate. The VA doctor may also fail to provide sufficient reasons to support his conclusion or may fail to perform required tests. Again, these factors may be used to successfully attack a VA examination.
The Board fails to properly consider lay evidence. The Board’s treatment of lay evidence is very important because it frequently is the only evidence the claimant may have that documents either what happened in service or the ongoing symptoms he experienced since discharge. VA likes to discredit lay statements if they are not corroborated by medical or military records. VA does not like to accept the statements of veterans. When analyzing the Board decision in your case, you should look carefully to determine if the Board rejected lay statements simply because they are not corroborated by medical or military records. In some cases, lay evidence may be the only evidence you have to document what happened in the service or the ongoing symptoms. It is error for the Board to reject the lay statements simply because they are not corroborated by medical or military records.
The Board fails to consider all possible diagnoses. To explain this type of Board error, it is useful to give an example. Let’s say the claimant has a mental disability, and some of the doctors indicate a diagnosis of PTSD. The claimant then files for PTSD. The VA sends the claimant for a VA exam and the VA doctor then diagnoses depression and not PTSD. The Board then denies the PTSD claim because the claimant has depression and not PTSD. Under these circumstances, the Board is required to consider service-connection for depression even though the claimant filed a claim for PTSD.
The Board fails to consider a claim or theory. This is a situation where the claimant may not have specifically made any arguments for a particular claim or theory, but the evidence submitted suggests other claims or theories. The VA is required to consider all possible claims or theories that are suggested by the evidence even if not specifically raised.
The Board fails to make sure the VA satisfies the duty to assist. The VA is required to assist the claimant in obtaining evidence to support his claim. This means VA is required to request records that the claimant identifies and authorizes VA to obtain, and it also means that VA is sometimes required to provide a medical exam. There are certain circumstances where VA must provide an exam. If the claims file shows the following four factors, then VA will have to provide a medical exam: The evidence must show (1) a current disability; (2) something happened in the service; (3) an indication that the disability may be associated with service; and (4) there is not enough medical evidence to decide the case. If these four criteria are satisfied, VA will be required to give a claimant a medical exam. The Board will often overlook the evidence that meets these four elements and fail to send the case back to the regional office for a medical exam.
The Board plays the role of a doctor. The Board cannot decide the medical issues in the case without relying on the medical reports of doctors. For example, the Board cannot piece together various medical records and come up with its own diagnosis. You must carefully analyze the language in a Board decision to make sure the Board is not violating this rule.
The Board fails to comply with a prior order of the Board or the U.S. Court of Appeals for Veterans Claims. If your case has previously been at the Board or the Court and was remanded with special instructions, the Board must comply with those instructions. If it fails in this regard, it is grounds for a remand.
The VA failed to provide proper notice. Sometimes the VA fails to provide the claimant with proper notice of all the information that is required under the law. The law requires that VA notify the claimant concerning the types of evidence that are needed to support the claim. You should look carefully at the letters VA sends to make sure VA has adequately informed the claimant of the necessary information before it makes a decision in the case.
APPEALING TO THE CAVC
Over the past decade, the U.S. Court of Appeals for Veterans Claims (“CAVC”) has remanded or reversed, at least in part, more than 70 percent of cases that it adjudicated on the merits.
Under 38 U.S.C. § 7252(a) the U.S. Court of Appeals for Veterans Claims (“CAVC”) has exclusive jurisdiction to review BVA decisions. The Secretary has no authority to seek appellate review of a BVA decision. Id. The CAVC has the power to affirm, modify, reverse or remand a decision of the BVA. Id. The basis of the CAVC’s review is the record of proceedings before the agency. Id. § 7252(b).
Only a person adversely affected by a BVA decision may appeal. See 38 U.S.C. § 7266(a). In A.B. v. Brown, 6 Vet. App. 35, 38 (1993), the Court observed that this requirement is met when the appellant receives less than the maximum to which he may be entitled. For instance, if the appellant appealed the assignment of a 50 percent rating for service-connected PTSD, and the BVA granted 70 percent, the appellant would be entitled to appeal the BVA’s failure to award the maximum 100 percent.
There are four criteria for the CAVC’s jurisdiction:
- There must be a final decision on a claim. See 38 U.S.C. § 7266(a). In practical terms, this means that an appellant cannot appeal an issue that is not the subject of a final BVA decision.
- A Notice of Appeal must be filed within 120 days after the BVA decision was mailed. See 38 U.S.C. § 7266. The Notice of Appeal must be either received or postmarked by the U.S. Postal Service within 120 days.
- The Notice of Appeal must contain three criteria:
- It must identify the BVA decision being appealed and indicate an intent to seek appellate review;
- It must set forth the appellant’s name, address, telephone number, and VA file number. (Note: The Notice of Appeal is the only pleading that contains the appellant’s VA file number.)
- It must be accompanied by a Notice of Appearance if it is being filed by an attorney.
- There must be a case or controversy. Under the case or controversy doctrine, a federal court cannot render an advisory opinion. The CAVC adheres to this doctrine as a jurisdictional predicate. See Norvell v. Peake, 22 Vet. App. 194, 201 (2008)(citing United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)).
Doctrine of Exhaustion of Administrative Remedies
This issue frequently arises when the evidence of record reasonably raises entitlement to a benefit that was never expressly raised by the appellant. This also applies in situations where the appellant raises a legal theory for the first time on appeal at the CAVC, which was not addressed by the BVA.
In general, the doctrine of exhaustion of administrative remedies would preclude an appellant from raising an issue not previously raised before the administrative agency. In VA practice, however, the requirement that the Secretary “fully and sympathetically develop a veteran’s claim to its optimum” would require the Secretary to determine all potential claims raised by the evidence of record. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); see also Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Thus, an appellant can appeal to the CAVC the VA’s failure to determine an issue reasonably raised by the evidence of record. See Beverly v. Nicholson, 19 Vet. App. 394 (2005). In day-to-day practice before the CAVC, this is a common issue and advocates must carefully determine what issues or theories were raised by the evidence of record that the Secretary failed to address. Consistent with the non-adversarial nature of the VA claims process, the Federal Circuit has ruled that the CAVC has jurisdiction to consider any issue raised for the first time at the CAVC level. See Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). However, the Court noted that just because the CAVC has jurisdiction over an issue, does not mean that consideration of the issue was mandatory. Id. But in general, the CAVC has adopted a liberal approach to issue exhaustion.
The Extent of the CAVC’s Review of BVA Decisions
The scope of the Court’s review is addressed in 38 U.S.C. § 7261. The important points to consider are:
- The CAVC will review BVA findings of fact under the “clearly erroneous” standard of review. This means that although there is evidence to support it, the reviewing court “on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990); see also Hicks v. Brown, 8 Vet. App. 417, 422 (1995)(noting that a clearly erroneous finding would be made only if all of the evidence was against the BVA’s factual finding). In general, the CAVC still gives the BVA significant deference when reviewing factual findings.
- The CAVC will review BVA findings on non-factual issues under the “arbitrary and capricious, [or] an abuse of discretion” standard of review. See 38 U.S.C. § 7261(a). Examples include whether the BVA erred in denying a waiver of indebtedness and whether the Secretary erred in the selection of a diagnostic code.
It is important to note that the CAVC may not review favorable BVA findings of fact. See 38 U.S.C. § 7261(a)(4). Remember, that the Court reviews purely legal issues de novo.
BASIC PRACTICE AND PROCEDURE BEFORE THE CAVC
As an attorney you are required to use the Court’s CM/ECF filing system. The Court’s website www.uscourts.cavc.gov provides information as to becoming an CM/ECF filing system user. In short, all documents must be electronically signed and converted to a “PDF” and then e-filed directly with the Court.
Commencement of the Appeal – The Filing of the Notice of Appeal and Notice of Appearance
The first step in the appellate process before the CAVC is to file the Notice of Appeal within the 120-day time frame. The contents of the Notice of Appeal were discussed supra. Since a new appeal will not be on the Court’s docket, case-initiating documents can be submitted via email to [hidden email].
Attorneys filing a Notice of Appeal must also include a copy of their Notice of Appearance. The Notice of Appearance must be in the name of an individual attorney and not a law firm. The Court does permit a limited appearance for the sole purpose of filing the Notice of Appeal.
The CAVC also requires a $50 filing fee. This must be filed within 14 days after the Court’s issuance of the Notice of Docketing. In practice, the filing fee should be submitted at the same time the Notice of Appeal is filed. For veterans experiencing financial hardship, the Court provides for the filing of a Declaration of Financial Hardship in lieu of the filing fee.
The Record Before the Agency
Within 60 days after the Notice of Docketing, the counsel for the Secretary must serve a copy of the Record Before the Agency (“RBA”). The RBA is a copy of the entire claims file. It contains all the documents in the claims file as of the date of the BVA decision being appealed. The RBA is served on the appellant (or his counsel) and is not filed with the Court. The Secretary’s counsel will file a notice with the Court that the RBA was served. This starts the time in which an appellant has to respond to the RBA.
For attorneys, the Secretary will serve the RBA in the form of a CD containing the claims file in “PDF” format. The CD is searchable and given that many of these files can be several thousand pages, file storage is more manageable.
The attorney should review the RBA and respond within 19 days after the date it was served. The initial review should be to ascertain completeness and legibility. If there are no issues with the RBA, the attorney should file a statement with the Court indicating acceptance of the RBA. If the attorney does not file a statement accepting the RBA, then after the 19th day the Court will deem the RBA as accepted.
If there is a dispute, counsel should contact his adversary and try to resolve the disagreement. If the disagreement cannot be resolved, then notice should be filed with the Court indicating a dispute and what efforts the parties have taken to resolve the dispute.
The Notice to File Brief
Upon acceptance of the RBA, the Court will issue a 60-day Notice to File Brief. This places the appellant on notice that his or her brief is due within 60 days.
The Briefing Conference
The briefing conference is similar to a settlement conference that exists in other appellate courts. It is part of the Court’s dispute resolution process. The conference is a crucial event in the case.
As an attorney, it is your job to get the case overturned and remanded as fast as possible. Remember, for a veteran to appeal as far as the CAVC means that his case has been on appeal for many years. As such, trying to resolve the case without having to go to brief will save time and money.
Shortly after the Court issues a Notice to File Brief, it will schedule a briefing conference. You will receive an order indicating the date and time of the conference. These conferences are conducted over the telephone between the counsel for the parties and a staff attorney from the Court’s Central Legal Staff. The Court endeavors to schedule the conferences approximately 30 days before the briefing deadline.
Next, the attorney must prepare his summary of the issues and serve it on opposing counsel and the Central Legal Staff no later than 14 days prior to the conference. Service is generally made by email. The attorney must then file a Certificate of Service with the Court indicating the date and manner of service.
The summary of issues or the conference memo is critical. Your case can be won on the strength of the conference memo. To prepare, the attorney must undertake a thorough chronological review of the entire RBA. The memo should include a discussion of the issues and relevant law and facts–with citation to the relevant pages from the RBA. The memo must be double-spaced and in 13-point font. It cannot exceed 10 pages.
The Central Legal Staff attorney will initiate the conference call. The counsel for the Secretary will generally provide a response to the memo and disclose the Secretary’s position. Appellant’s counsel then has an opportunity to discuss the issues as well. Often, an agreement for a joint resolution is reached at the time of the conference. This is where the Secretary recognizes error in the BVA decision and the parties agree that the matter should be remanded.
The Joint Motion for Remand
Assuming the parties reach an agreement as to BVA error, they will enter into what is called a Joint Motion for Remand (“JMR”). In practical terms, this is a settlement agreement that gets filed with the Court. A sample JMR is attached.
There are several points that warrant emphasis relative to a JMR. In Stegal v. West, 11 Vet. App. 268, 271 (1998), the Court ruled that a remand by the Court or the BVA imposed a concomitant duty on the Secretary to ensure compliance with the terms of the remand. The current practice of the Court is to issue an order granting the JMR and citing to Stegal.
The goal of the JMR is to narrow the legal or factual issues that the BVA would have at its disposal to construct another denial. The idea is that the BVA adjudicator should be “boxed in” to reach a favorable conclusion. The JMR should be as precise as possible, and it should specify the legal and factual errors that were made in the past.
After the JMR is filed, the Court will issue an order and then a mandate. An application for attorney fees can be made within 30 days after the mandate.
Joint Stay Motions
If the parties reach an agreement to enter into a JMR, they can file a Joint Motion for Stay of Proceedings. This would “stay” the case for up to 60 days to draft the JMR. The first stay motion is usually for 30 days and must be a joint filing. The stay can be extended up to an additional 30 days. Upon consent, either party can extend the stay unilaterally. Once the stay is lifted, the timeline of the case resumes at that point where it left off when the stay was imposed.
What Happens When There is no Settlement?
In the event that the parties do not reach an agreement at the briefing conference stage, then the parties proceed to the briefing stage. Under the current rules of practice, in cases where the appellant is represented by counsel, the brief due date must be re-calculated at the time of the briefing conference. Although there was an initial 60-day briefing deadline, this deadline gets re-calculated to be 30 days after the date of the briefing conference.
Preparing the Brief
U.S. Vet. App. R. 28 and R. 32 contain the information pertaining to the contents and format for a brief. See sample attached. It must contain a table of contents, a table of authorities, including citations to the RBA, a statement of the issues, a statement of the case, a legal argument, and conclusion.
The principal brief cannot exceed 30 pages. If oral argument is desired, the appellant must file a separate motion.
It is also important that the brief raise all potential legal issues. The failure to address an issue will result in that issue being abandoned. All issues must be raised in the principal brief. The attorney cannot raise a new issue in his reply brief–unless it is in response to an issue raised by the Secretary’s brief.
The Reply Brief
The Secretary has 60 days to respond to the appellant’s brief. The reply brief must be filed within 14 days after the Secretary’s brief. It is optional to file a reply brief.
The Record of Proceedings
After the briefs have been filed, the Secretary will compile a Record of Proceedings (“ROP”) that contains all the relevant documents necessary for the Court’s review and disposition of the case. The Appellant must review the ROP to ensure its accuracy and completeness. The appellant has 14 days to respond to the ROP. If he fails to file a statement accepting the ROP within the time allowed, it will be deemed accepted.
The Court will generally make a decision in 10-12 months after the briefs have been filed.
Motions are governed by U.S. Vet. App. R. 27. Motions for extensions are governed by U.S. Vet. App. R. 26. Extension motions are the most common. In general, the parties can extend any required event up to 45 days.
Appeals from Final CAVC Decisions
The Federal Circuit has exclusive jurisdiction to hear appeals from CAVC denials. The practice and procedure before the Federal Circuit is beyond the scope of these materials. Keep in mind, however, that appeals to the Federal Circuit must be made within 60 days after the CAVC final decision.