Navigating the Appeal Process at the Court of Appeals for Veterans Claims

In a previous blog post, we discussed the Court of Appeals for Veterans Claims (CAVC) in general—what it is, how it differs from the rest of the VA, how long the process takes, etc. This post is going to take you step by step through the first part of the actual appeal process at the Court.

Key Court Terms & Acronyms:

Appellant	The veteran/claimant who filed the appeal
Appellee	The Secretary of the VA; otherwise, the Court attorney handling the case
Notice of Docket Activity	An email notification of any activity performed in relation to the Court case; for example: filing a brief, filing a motion, filing an order
Brief	Summary and presentation of the argument of that party
RBA	Record Before the Agency; this is the copy of all relevant documents that were in the veteran’s claims file on the date that the Board issued the decision from which the appeal was based.
ROP	Record of Proceedings; copy of the Board decision along with any documents in the RBA that were cited in the briefs or any other documents relevant to the appeal.
EAJA	Equal Access to Justice Act; attorney’s fees that are paid out to whichever party wins the case.
CLS	Central Legal Staff; the Office of General Counsel

Initial Filing:

When the Board of Veterans Appeals makes a decision on a claim, the claimant has 120 days to appeal this decision to the Court of Appeals. If the claimant does not have a representative, and wishes to continue the appeal without representation or to engage representation at a later date, the claimant may file the appeal as a self-represented appellant.

Once the appeal is filed, the appellant has 14 days to file either a $50 filing fee, or a Declaration of Financial Hardship waiving the cost of the fee. If the appellant is being represented, the representative must file the Contract for Representation which allows the representative to collect attorney fees on the court case if the case is decided in the appellant’s favor.

Once the preliminary documents have been filed, the Appellee has 30 days to serve a copy of the BVA decision to the representative, and 60 days to serve the Record Before the Agency (RBA). The Appellant then has 14 days to dispute the RBA (if there are any missing pages, etc.).

The Appellant has 60 days after the deadline to dispute the RBA to file the opening brief. This is the appellant’s argument of the case. The Appellant, or the Appellant’s representative, may request a 30 day extension to file the brief. This is almost always granted. The Clerk of the Courts is the authority who grants requests for extensions.

CLS Conference

A telephone conference between the Central Legal Staff (CLS) attorney—the counsel representing the Secretary—and the Appellant’s attorney is set for 30 days prior to the Appellant’s deadline to file the opening brief. The Appellant has 14 days before the scheduled conference date to file the Summary of Issues, which is outlines the argument.

The object of the telephone conference is to potentially come to a settlement between the two parties. Ideally, the attorney for the Appellee would agree with the Appellant’s argument and offer a Joint Motion for Remand (JMR), which would remand the case back to the Board for reconsideration. The Board would be required to perform certain actions as agreed upon by the Appellant and Appellee attorneys.

• JMR Agreed

If a JMR results from the CLS conference, no brief is due on the case. The Appellee attorney drafts and files the Joint Motion for Remand. Once the Clerk of the Courts approves the JMR, the judgment is issued. The Appellant has 30 days to file an EAJA application (only if the claimant had engaged legal representation). Once the application is approved, the case is closed. The file then returns to the Board for reevaluation.

Note: The Court never directly grants a claim. The Court will either remand or deny the case.

• JMR Not Agreed

If the attorneys do not come to an agreement, the case continues through the Court system, and is ultimately decided by a judge.