How does a Veteran get his or her claim for disability benefits before the Court of Appeals for Veterans Claims (CAVC)?  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 final decision of the BVA.   BVA Decisions are not always the easiest to read; however a decision of the Board of Veterans Appeals is final if it doesn’t remand the claim to the VA Regional Office or award benefits.  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 the appeal to the CAVC within 120 days of the Mailing of the BVA Decision.  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).  We recommend filing the CAVC Appeal well before the 120 day deadline, but understand that circumstances arise where it will be necessary to file at or near the 120 day deadline. In those cases,  the Veteran must provide evidence demonstrating that the NOA was properly addressed, stamped and mailed in time to reach the CAVC in the normal course of business before the 120 day deadline has elapsed.  A good way to do this is to use technology:  I snap a “photo” of the envelope after the Post Office has affixed postage, using an iPhone app called “JotNot Scanner Pro” – which allows my iPhone to work as a scanner.  Another good way to do this is to fax the Notice of Appeal to the Court.  Read more about that process by going to the CAVC Website.

3) The Veteran must 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.

4) There must be a “case or controversy”.  This is a requirement of every Federal Court, and the phrase has its roots in the Constitution. Books could be written on what “case or controversy” means.  However, for the purposes of a CAVC appeal, so long as the Veteran is appealing a final BVA decision, and so long as the Veteran is not seeking what is called an “advisory opinion”, the Veteran’s appeal more likely than not meets this element.

It is important to note that a “case” is considered to be submitted for decision once the Appellant files the reply brief (or the deadline for the reply brief has passed).  This is important because if a Veteran dies before a case is “submitted for decision”, the CAVC might rule that the appeal is moot – or, if it issued a decision without knowing the Veteran died before the case was “submitted for decision”, it may withdraw the decision altogether.

Now – this is very important – survivors may have the ability to substitute into the case of a deceased Veteran.  I will post more on the topic of substitution in a later post, as it is a rather complex topic.  If you are a survivor of a Veteran that died during the pendency of an appeal before the CAVC,  it is vital that you contact an attorney that is familiar with appeals to the Court of Appeals for Veterans Claims (CAVC) to see if you can substitute into the deceased Veteran’s appeal and recover benefits owed to him/her by the VA.

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 compensation from the Department of Veterans Affairs.