On the Veterans Law Blog, I’ve talked a lot about how Veterans Court cases can be a blueprint – or a guide – to improving your own VA Claim.
Here are some of the things that the Veterans Court teaches us in our VA Claims:
1) How to know what GOOD Lay Evidence looks like.
4) The ONE Thing you should do NOW in your VA Claim – before its too late.
5) 10 Cases Every Veteran Should Know.
Can you only use these cases at the Court of Appeals for Veterans Claims?
While you can only cite to Federal Circuit court cases and full-court Veterans Court opinions as law, you can USE the lessons these cases provide at any stage of the process.
You can use any of the lessons above to improve your VA Claim at any level. You can use them at the Regional Office to understand how to provide the BEST evidence to the rating team in your claim.
You can use them to make sure you have a good rifle and a lot of bullets (medical and lay evidence, that is) at the BVA.
And you can always use them to shape your appeal at the Veterans Court.
How Do You Get YOUR Case Heard Before the Court of Appeals for Veterans Claims ?
How does a Veteran get his or her claim for disability benefits before the Court of Appeals for Veterans Claims (CAVC)?
First, the Court must have jurisdiction.
In order for the CAVC to have jurisdiction over a Veteran’s claim, the Veteran must meet the following requirements:
#1: The Veteran must have a BVA decision.
N.B. The current state of the law, as of July 2016, says that you can only appeal a “final” Board of Veterans Appeals (BVA) decision to the CAVC, and that a BVA Decision is only final if it denies your claim for benefits: my law firm is working to challenge this position, as it is inconsistent with Supreme Court holdings and the language of Congress defining the Court’s jurisdiction in its statute forming the Court.
Many BVA decisions include a combination of outcomes – in that case, the portions of the claim that are not remanded or granted are appealable to the Court of Appeals for Veterans Claims (CAVC).
However, even when a claim is partially remanded and partially denied, the CAVC may still refuse jurisdiction – if the issues are “inextricably intertwined”.
A common example of this is the Veteran’s survivor who files for DIC and Accrued Benefits – if a factor in the Accrued Benefits claim would affect the outcome of the DIC claim, then the Court can refuse to exercise its jurisdiction over the denied portion and remand the whole claim to the BVA for correction.
#2: The Veteran must file their appeal – on time – to the Veterans Court.
The Veteran must file the appeal within 12o days of the date that the BVA mailed its decision (this date is usually referenced in the cover letter to the BVA Decision).
I strongly recommend filing the Veterans Court Appeal before the 120 day deadline.
However, circumstances arise where it will be necessary to file at or near the 120 day deadline. In those cases, you are going to want to make sure that you are prepared to show that you timeline filed the appeal.
I recommend that Veterans hold on to some evidence demonstrating that the NOA was properly addressed, stamped and mailed in time to reach the Veterans Court in the normal course of business before the 120 day deadline has elapsed.
Here are 3 ways to do that:
Snap a “photo” of the envelope after the Post Office has affixed postage,
Fax the Notice of Appeal to the Court.
If you are feeling particularly brave, you can ask the Court to allow you to use the Court’s e-filing system. This takes time, though. Attorneys are REQUIRED to use it – pro-se Veterans have to go through a pretty detailed process to get access, so don’t wait until the last minute
There are some situations where a Veteran can toll (meaning, delay) the filing deadline.
Ask the court – at LEAST 2-3 weeks before the deadline – to grant a filing extension based on your circumstances – the court’s don’t grant these for any old situation – you would have to show what lawyers call “good cause”.
#3: File a proper Notice of Appeal (NOA) (and pay the filing fee).
The easy way to do this is to use the Notice of Appeal form on the CAVC website. However, if a Veteran does not use the NOA form, (s)he must meet the following elements:
– The name, address, phone number of the Veteran and the appropriate VA Claims file number
– Reasonable identification of the Board Decision being appealed from, and reasonably signal an intent to seek CAVC review of that decision
– Notice of Appearance filed by any representative entering their appearance in the case on behalf of the Veteran.
I strongly recommend that Veterans seek legal counsel for representation at the Veterans Court.
Statistics have shown that Veterans represented by attorneys have a greater likelihood of getting their claims remanded back to the BVA or Regional Office to correct errors that might be causing a negative outcome for the Veteran.
Here’s how to find an attorney that is best for you and your claim.