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.

See www.uscourts.cavc.gov/report.php.

CAVC Jurisdiction

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:

  1. 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.
  2. 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.
  3. The Notice of Appeal must contain three criteria:
      1. It must identify the BVA decision being appealed and indicate an intent to seek appellate review;
      2. 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.)
      3. It must be accompanied by a Notice of Appearance if it is being filed by an attorney.
  4. 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.

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