Posted on: January 17, 2016
So far, in our previous blog posts, we have covered the life cycle of a VA claim from the initial filing at the regional office (RO) to the beginning stages of the appeals process. We have also explained how the RO actually develops appeals in addition to processing the initial claims, along with your rights on appeal and the standards of review that you may request. As a reminder, when you file an appeal, you are asking the VA to reconsider your claim. You may submit new evidence, have the VA review this evidence in addition to what you initially submitted, and even request that the VA looks at everything “with fresh eyes”, or de novo. You can also request hearings with the VA to assist them in reevaluating your claim. And you also have the right to file a further appeal, generally using a VA Form 9, which brings us to our discussion today: appeals to the Board of Veterans’ Appeals.
The Form 9 is the official form which allows you to Appeal to the Board of Veterans’ Appeals. You must file this form within 60 days of receiving your statement of the case (SOC) from the RO. But just how many appeals does the Board actually hear? Over the last four years, the VA has become much more efficient in the processing and appeals processes. In fact, the VA has completed more claims in those four years than any other period in their history. Of course, with more decisions, there have been more appeals. Regardless of the increase in decisions, however, only around 4% of those claims that have been decided actually get appealed to the Board each year.
You may be wondering what happens once an appeal is filed with the Board. Or, if you have an appeal pending at the Board, you may be frustrated and wondering why it is taking so long to receive a decision. Once the Board receives a new Form 9, a date is assigned to it which places it on the Board’s docket. Under VA law, the Board must work the appeals it receives in the order that they are placed onto their docket. The exceptions to this general rule apply to terminally ill veterans, elderly veterans and their survivors, and those who prove financial hardship. Sometimes these appeals can be moved forward on the docket, depending on their classification. As of now, the average middle date for appeals on the Board’s docket date back to around July of 2014, so you can see that there can be quite a delay, depending on when your appeal was filed.
Once you have been assigned a spot on the Board’s docket, you have a couple of options. You may request a hearing before the Board, where you can choose to be represented by a service organization or an attorney. If you choose this option, your representative will appear before the Board with you and help you explain your case. Then, your hearing will be transcribed by the VA and they will place it in your c-file. If you choose to avoid having a hearing, your representative will draft a brief that states the facts of your case, the relevant laws and legal arguments that they think should control the outcome of your case, and the outcome that you are asking the Board to grant. The Board will take those arguments and laws into consideration, review your claim de novo, and then decide to do one of three things: grant or deny the appeal, or remand (send back) your claim to the RO for more decision-making.
Of course, you still have the right to disagree with the Board’s decision and appeal it further. If you do this, your appeal will go before the Court of Appeals for Veterans Claims, or CAVC. You must have a final decision from the Board before you may appeal to the CAVC. Once the Board has issued their decision, you must file a Notice of Appeal with the CAVC within 120 days of receiving the Board’s decision (use the date on the front of the BVA’s decision to calculate the appropriate time frame). Your attorney or representative will also file a Notice of Appearance to appear before the CAVC on your behalf, and your case will be then be docketed.
After your case goes before the CAVC, they will issue a decision on your case. If you still disagree, you may appeal again, at which point your case will progress to the U.S. Court of Appeals for the Federal Circuit. And if you lose there, you can request that the U.S. Supreme Court review your appeal (although the Supreme Court very rarely grants review). Interestingly, if your case leaves the CAVC to these higher levels of appeal, the decisions of the VA and the RO are generally no longer under consideration. Instead, the Court of Appeals for the Federal Circuit and the Supreme Court will only be looking for errors of law that the lower courts and Board made in deciding your case before it reached them.
So now you can see the multiple layers of complexity, deadlines, and procedures that go along with your appeal – and why it can be such a time-consuming and frustrating process. If you are feeling lost, frustrated, and alone in dealing with the VA, remember that there is an experienced team that can help you if you feel like you just can’t deal with the added stress.
At George Sink, P.A. Injury Lawyers, we can provide clients with personalized assistance throughout the process of securing monthly disability benefits. It’s important to remember that the VA is applying strict qualifying criteria when deciding your eligibility to receive disability benefits, but our experienced veterans disability lawyers know these criteria and can help make the appeals process easier on you and your family. If you want an experienced team on your side to help you get the compensation you deserve, call today for your free case review.