Veterans Disability Benefits: Eight (8) Facts Veterans should know about the Court of Appeals for Veterans Claims (CAVC).

Here are eight (8) facts that I think every Veteran should know about the Court of Appeals for Veterans Claims:

1) Range of outcomes.  Many Veterans think that they will win their claim outright at the Court of Appeals for Veterans Claims (CAVC).  While this is a possibility, it is not a common occurrence at the CAVC. By far the most likely outcome is that the Court of Appeals for Veterans Claims will remand the claim back to the Board of Veterans Appeals (BVA).  In fact, if I recall the statistics I recently saw, some 80% of CAVC Appeals are remanded back to the BVA to correct an error.  Other possible outcomes include dismissal of the case for lack of jurisdiction (if the Court doesn’t have statutory or Constitutional authority to hear a case), or outright denial of the claim.  The last outcome is rare, but it does happen.  If it does happen, your only viable options are to appeal to the Federal Circuit Court of Appeals, or attempt to reopen your claim at the VA Regional Office.

2) No jury trial.  There is no point in the VA claims process where you are entitled to a trial by jury.  That’s unfortunate, because I suspect a jury would be far more sympathetic to most Veterans claims than the Department of Veterans Affairs.   Instead, your appeal will either be decided by a single-judge, or a panel of three (3) judges.  Single-judge decisions are used in cases that are non-precedential – meaning generally that they do not create new law.  Panel decisions are typically used in cases where the decision of the Court of Appeals for Veterans Claims will have an impact beyond the current case – they are precedential, meaning that the “lower courts” (i.e., the BVA and the VARO) are (in theory) bound to follow them.

3) No discovery.  In traditional litigation, each party has the opportunity to “discover” information about the case that the other party has.  This could include depositions, document production, written questions, and admission/denial of certain facts. I am of the opinion that if there were traditional discovery under the Federal Rules of Civil Procedure in Veterans claims, that the claims process would move much, much quicker.   Regardless, that option is never available.  There are three major sets of “evidence” that you can – and should get from the VA:  a) your claims file, or C-File, b) your VA Medical Records, and c) the ROA, or Record on Appeal.  The ROA will be sent to you – typically in paper and on a CD-R – by the  attorney representing the VA at the Court of Appeals for Veterans Claims.

4) The VA will have an attorney.  This is the first stage of the claims process where the VA will openly be represented by an attorney.  The law does not permit the VA claims process to be adversarial, so the VA’s attorneys are not as vicious or conflict-prone as, say, USPS attorneys.  In fact, I have enjoyed working with the VA’s attorneys at the CAVC.  However, VA attorneys are not your friends – they do represent the government’s interests, and not yours. For that reason, it is always a smart idea to consider having an attorney represent you before the Court of Appeals for Veterans Claims. Here is a blog entry that will help you to choose an attorney for your veterans claim before the Court of Appeals for Veterans Claims.

5) You can hire an attorney.  Here is another post about choosing an attorney at theCourt of Appeals for Veterans Claims.  It is important for you to know that the industry standard is that attorneys do not charge Veterans up-front fees for representation at the Court of Appeals for Veterans Claims.  The attorneys typically petition the CAVC to have the VA pay the attorney’s fees, under the Equal Access to Justice Act (EAJA) if the Veteran is a “prevailing party” at the CAVC.  As for costs, different attorneys have different arrangements, and an attorney is permitted to ask you to repay reasonable costs from the appeal to the CAVC.

6) Length of time.  The average time for the adjudication of an appeal to the Court of Appeals for Veterans Claims is somewhere around 254 days from filing to decision (or mandate, as it is called in the appellate courts).

7) Filing Fee. There is a filing fee for the Court of Appeals for Veterans Claims. It is currently $50, but you can have it waived for financial hardship. Many law firms will advance the filing fee to their client as part of the attorney-client agreement covering representation before the Court of Appeals for Veterans Claims.

8 )  Settlement and the Rule 33 Briefing Conference.  Technically, the VA cannot “settle” VA disability benefits claims.  However, sometime before the Appellant’s Brief is due, the Court of Appeals for Veterans Claims will hold a “Briefing Conference”.  At the Briefing Conference, the parties/attorneys discuss, with a representative of the Court of Appeals for Veterans Claims, the substance of the claim.  There are typically two outcomes to this conference: Joint Motion to Remand and Briefing the Appeal.  I will talk more about the JMR – Joint Motion to Remand – in later posts, but for now, it is sufficient to say that if the Parties believe that the BVA and/or the VA Regional Office made an error, they can send it back to that level to correct the error. Many times – but certainly not always – this results in a grant of service-connection and/or past-due benefits to the Veteran.  If the VA’s attorney is not convinced of the BVA or VA Regional Office error, the case will be briefed. However, I have found that even when unsuccessful, any dialogue between attorneys for a claim is useful to develop a relationship for possible future resolution of the claim.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans.  The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.

It is very important that we note that each and every Veteran’s claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you.   In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case.

It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.  If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals in Texas, Arkansas, Oklahoma, and all around the nation, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.

The Attig Law Firm, PLLC, and VA benefits attorney Chris Attig, represents military Veterans in Texas, Arkansas, Oklahoma (as well as all around the nation) before the VA Regional Office, the Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) in claims for disability compensationfrom the Department of Veterans Affairs.