Overview of the Appeal Process for Veterans' Claims

May 20, 2014 (R42609)

Contents

• Introduction
• Filing the Original Claim for Benefits at the VA
• What Can Be Appealed?
• Two Types of Appeals
• Who Handles Veterans' Appeals?
• Decision Review Officer
• The Board of Veterans' Appeals
• The Court of Appeals for Veterans Claims
• The Court of Appeals for the Federal Circuit
• The Supreme Court of the United States
• Legal Representation
• VA's Duty to Assist Claimants
• The VA Appeal Process
• Notice of Disagreement
• Where and When to Send the NOD
• VA Proposed Rule Change Regarding NOD Form
• DRO Review and Statement of the Case
• The Substantive Appeal: VA Form 9
• BVA Docket and Docket Number
• Hearings with the BVA
• Adding Additional Evidence to the Claim File and the 90-Day Rule
• BVA Review of Claim
• Amount of Time for BVA to Reach a Decision
• BVA Decisions
• Reconsideration of BVA Decisions
• Motion for Reconsideration
• Reopening the Case
• CUE Motion
• Appealing a BVA Decision to the Courts
• Court of Appeals for Veterans Claims (CAVC)
• 120-Day Filing Deadline: Henderson v. Shinseki
• Court of Appeals for the Federal Circuit and the Supreme Court

Appendixes

• Appendix. Proposed Legislation in the 113^th Congress

Summary

Overview of the Appeal Process for Veterans’ Claims Daniel T. Shedd Legislative Attorney April 29, 2013 Congressional Research Service 7-5700 www.crs.gov R42609 CRS Report for Congress Prepared for Members and Committees of Congress Overview of the Appeal Process for Veterans’ Claims Summary Congress, through the U.S. Department of Veterans Affairs (VA), provides a variety of benefits and services to veterans and to certain members of their families. These benefits include disability compensation and pensions, education benefits, survivor benefits, medical treatment, life insurance, vocational rehabilitation, and burial and memorial benefits. In order to receive these benefits, a veteran (or an eligible family member) must apply for them by submitting the necessary information to a local VA office. The local VA office will make an initial determination on the application for benefits. Any veteran who is not satisfied with the local VA’'s determination is permitted to appeal the decision. This report provides a step-by-step breakdown of the appeal process for veterans’' claims. After an appeal is filed, the local VA office will again review the claim. If the local VA office still denies the claim, the local VA office will prepare the claim file for the appeal and provide the claimant with a blank VA Form 9—a form that must be completed to make an appeal to the Board of Veterans’' Appeals (BVA). Claimants must follow specific procedures to request the appeal and must meet certain deadlines for submitting the proper information. The claimant may choose to have a hearing with the BVA during the appeal process. There are three different types of hearings that the claimant may choose: (1) an in-person hearing with a BVA member, held in Washington, DC; (2) an in-person hearing with a BVA member, held at a local VA office; or (3) a teleconference hearing. The hearings with the BVA are informal and nonadversarial in nature. The claimant will be given the opportunity to explain the reasons for the appeal and to submit additional evidence during the hearing. The claimant may be represented during the appeal process. After the BVA reaches a decision on the appeal, there are further options the claimant may pursue if he or she is still not satisfied with the BVA decision. A claimant may file a notice of appeal with the Court of Appeals for Veterans Claims (CAVC). The CAVC, an Article I court, has exclusive jurisdiction to review decisions of the BVA. A claimant must submit a notice of appeal within 120 days of receiving the decision from the BVA. However, a recent Supreme Court decision, Henderson v. Shinseki, clarified that the 120-day deadline is not a “jurisdictional”"jurisdictional" deadline. Therefore, an appeal to the CAVC will not necessarily be dismissed for missing the deadline. However, the claimant must have a good reason for filing late, such as an inability to meet the deadline due to mental incapacity. This report will examine this case and discuss various acceptable reasons for missing the 120-day deadline. The VA’'s appeal process consistently receives congressional attention. In the 113th Congress, legislation has been introduced that would require the VA to distribute appeal forms to claimants along with any notice of decision on a claim. In the 112th Congress, various pieces of legislation were proposed that would have altered the appeal process. These proposals ranged from extending the 120-day filing deadline with the CAVC to requiring CAVC judges to live within a certain distance of Washington, DC. The proposed legislation from the 113th and 112th Congresses is discussed in the Appendix to this report. Congressional Research Service Overview of the Appeal Process for Veterans’ Claims Contents Introduction...................................................................................................................................... 1 Filing the Original Claim for Benefits at the VA ...................................................................... 1 What Can Be Appealed? ............................................................................................................ 1 Two Types of Appeals ............................................................................................................... 2 Who Handles Veterans’ Appeals? .............................................................................................. 2 Decision Review Officer ..................................................................................................... 2 The Board of Veterans’ Appeals .......................................................................................... 3 The Court of Appeals for Veterans Claims .......................................................................... 3 The Court of Appeals for the Federal Circuit ...................................................................... 4 The Supreme Court of the United States ............................................................................. 4 Legal Representation ................................................................................................................. 4 VA’s Duty to Assist Claimants ................................................................................................... 5 The VA Appeal Process.................................................................................................................... 6 Notice of Disagreement ............................................................................................................. 6 Where and When to Send the NOD .................................................................................... 6 DRO Review and Statement of the Case ................................................................................... 7 The Substantive Appeal: VA Form 9 ......................................................................................... 8 BVA Docket and Docket Number.............................................................................................. 8 Hearings with the BVA .............................................................................................................. 9 Adding Additional Evidence to the Claim File and the 90-Day Rule ....................................... 9 BVA Review of Claim ............................................................................................................. 10 Amount of Time for BVA to Reach a Decision ....................................................................... 11 BVA Decisions......................................................................................................................... 11 Reconsideration of BVA Decisions ......................................................................................... 12 Motion for Reconsideration .............................................................................................. 12 Reopening the Case ........................................................................................................... 12 CUE Motion ...................................................................................................................... 12 Appealing a BVA Decision to the Courts ...................................................................................... 13 Court of Appeals for Veterans Claims (CAVC) ....................................................................... 13 120-Day Filing Deadline: Henderson v. Shinseki.............................................................. 14 Court of Appeals for the Federal Circuit and the Supreme Court ........................................... 16 Appendixes Appendix. Proposed Legislation in the 112th and 113th Congresses .............................................. 17 Contacts Author Contact Information........................................................................................................... 18 Congressional Research Service Overview of the Appeal Process for Veterans’ Claims Introduction 113^th Congress, Members have introduced legislation that would change the appeal process. These proposals range from reducing the amount of time a claimant has to initiate an appeal to requiring videoconference hearings, unless a claimant specifically requests an in-person hearing. Proposed legislation, introduced in the 113^th Congress, is discussed in the Appendix to this report.

Overview of the Appeal Process for Veterans' Claims

Introduction

The Department of Veterans Affairs (VA) provides an array of benefits to veterans and to certain members of their families. These benefits include disability compensation and pensions, education benefits, survivor benefits, medical treatment, life insurance, vocational rehabilitation, and burial and memorial benefits.11 In order to apply for these benefits, in most circumstances, the claimant will send an application to his or her local VA office. The local VA Regional Office (RO) will review the application and make an initial determination as to whether the claimant is entitled to the benefit. If the local VA office determines that the claimant is not entitled to the benefit sought, the claimant has the right to appeal that decision. This report provides an overview of the VA appeal process from the first stages of the appeal through review by the Supreme Court of the United States. The introduction to this report will discuss the types of decisions that can be appealed, introduce the various actors in the appeal process, briefly describe the two avenues for appeal within the VA, and address the rights of a claimant to be represented during the appeal process. The report will then provide a step-by-step breakdown of the appeal process within the Department of Veterans Affairs followed by a description of further judicial review from the Court of Appeals for Veterans Claims, the U.S. Court of Appeals for the Federal Circuit, and the Supreme Court of the United States. Finally, the report concludes with a synopsis of legislative proposals to amend the appeal process. Filing the Original Claim for Benefits at the VA In order to apply for VA benefits, an applicant must file a claim at the local VA office, VA medical facility, or online at the VA’'s Veterans On-line Application (VONAPP) website.22 Veterans Service Organizations (VSO) are available to provide assistance with applying for benefits.3 3 Once the VA has received a completed application for benefits, the VA will review the claim and determine whether to allow or deny the claim. The VA will mail the determination to the claimant. If the VA has denied the claim, the claimant may appeal the decision. What Can Be Appealed? After the VA Regional Office mails the claimant an initial determination, the claimant may initiate the appeal process. The claimant will be notified of the right to appeal when the initial determination is issued.44 The claimant is permitted to appeal any decision reached on a claim for benefits.55 The BVA’'s regulations, at 38 C.F.R. §20.101(a), provide a long, but not exhaustive, list of the types of decisions that can be appealed to the BVA, including decisions related to service1 The Veterans Administration website provides comprehensive information on the benefits available to veterans. See Department of Veterans Affairs, Benefits and Services Available, http://www.va.gov/opa/newtova.asp. 2 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-02-02A, HOW DO I APPEAL? 3 (2002), available at http://www.bva.va.gov/docs/Pamphlets/010202A.pdf. 3 Id. 4 38 C.F.R. §19.25. 5 38 U.S.C. §511(a), 7104(a); 38 C.F.R. §20.101(a). Congressional Research Service 1 Overview of the Appeal Process for Veterans’ Claims service-connected disability benefits, benefits for survivors, education assistance benefits, and burial benefits. A claimant can appeal a partial or complete denial of a claim. Furthermore, if a claimant successfully receives a benefit from the RO, the claimant may still appeal the amount awarded. Thus, if an RO determines that a veteran is entitled to a 30% disability rating, but the claimant believes that percentage should be higher, this decision can also be appealed.6 6 A claimant is not permitted to appeal certain medical determinations made by medical examiners. For example, a veteran is not permitted to appeal a physician’'s decision to prescribe or not to prescribe certain drugs or specific treatments.77 The Board does not have jurisdiction over these types of claims. Two Types of Appeals When making an appeal on an initial determination, the claimant may choose to proceed with the traditional method of review or may choose to have a Decision Review Officer (DRO) review the case. Both forms of review are discussed in detail in this report. Briefly stated, under the traditional review process, the local VA office will review the claim folder to ensure that there are no obvious errors in the claim, prepare the case for review, and send the case to the Board of Veterans’ Veterans' Appeals (BVA). The BVA will then provide a de novo review of the case and reach a determination. Under DRO review, a Decision Review Officer, at the local VA office, will review the claim folder de novo. After reviewing the claim, the DRO will make another determination. Seeking Seeking DRO review does not preclude the claimant from pursuing the traditional review process. If the claimant is not satisfied with the DRO’'s decision, the claimant may proceed with the traditional review process and have the appeal heard by the BVA. Details of both the traditional method of appeal and the DRO review are provided later in this report. Who Handles Veterans’' Appeals? During the appeal process for veterans claims, various different officials will handle the claim. This section provides a brief introduction to the decision makers who will potentially review an appeal. More details on the appeal process and how these decision makers reach their conclusions follow. Decision Review Officer Each VA Regional Office has at least one Decision Review Officer on staff. The DRO is a “senior "senior technical expert who is responsible”" for processing appeals made to their RO.8 A DRO may hear 6 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 7 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 7 38 C.F.R. §20.101(b). 8 DEPARTMENT OF VETERANS AFFAIRS, DECISION REVIEW OFFICER (DRO) REVIEW PROCESS, M21-1MR, PART I, (continued...) Congressional Research Service 2 Overview of the Appeal Process for Veterans’ Claims 8 A DRO may hear any appeal that may be heard by the Board of Veterans’' Appeals. During DRO review, a DRO will review the claim de novo—that is, they will look at the case anew and afford no deference to the initial determination made by the Regional Office.99 The DRO may not revise the initial decision “"in a manner that is less advantageous to the claimant”" unless the DRO finds an instance of “"clear and unmistakable error.”10"¹⁰ In order to have an appeal reviewed by a DRO, the claimant must ask to take DRO review. Otherwise, the traditional form of review, directly through the Board of Veterans’' Appeals, will proceed.1111 If a claimant opts for DRO review, the claimant may still have the BVA review the claim if the DRO’'s decision is not favorable to the claimant.1212 The Government Accountability Office (GAO) reported that, in 2010, 65% of claimants opted to have a DRO review their appeal.13 13 The Board of Veterans’' Appeals When a claimant’'s application for benefits has been denied, an appeal can be made to the Board of Veterans’' Appeals (BVA or Board).1414 The BVA is part of the Department of Veterans Affairs, located in Washington, DC, and makes the final determination on an appeal within the VA. The Board consists of experienced attorneys in the field of veterans law. Board members are appointed by the Secretary of the VA, with the approval of the President.1515 As of 2012, the Board consisted of 64 members.1616 These Board members make the ultimate conclusion on appeals within the VA. The BVA also employs staff attorneys that assist the Board members while preparing a decision for a claim, much like a clerk for a judge.1717 The BVA has a significant work load—in the 2012 fiscal year (FY), the BVA received and docketed 49,611 appeals.1818 The BVA expects that number to climb to 54,033 for FY2013.19 19 The Court of Appeals for Veterans Claims If a claimant is not satisfied with the decision from the BVA, the claimant has the option of appealing to the Court of Appeals for Veterans Claims (CAVC).20 The CAVC is an Article I court, (...continued) CHAPTER 5, SECTION C (2011), available at http://www.benefits.va.gov/WARMS/M21_1mr1.asp. 9 38 C.F.R. §3.2600(a). 10 38 C.F.R. §§3.2600(d), 3.2600(e). 11 38 C.F.R. §3.2600(b). 12 38 C.F.R. §3.2600(f). 13 GAO, VETERANS DISABILITY BENEFITS: CLEARER INFORMATION FOR VETERANS AND ADDITIONAL PERFORMANCE MEASURES COULD IMPROVE APPEAL PROCESS 7 (2011). 14 38 U.S.C. §7104(a). 15 38 U.S.C. §7101A. 16 BOARD OF VETERANS’ APPEALS, REPORT OF THE CHAIRMAN: FISCAL YEAR 2012, at 19 (2013), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2012AR.pdf. 17 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 6 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 18 BOARD OF VETERANS’ APPEALS, REPORT OF THE CHAIRMAN: FISCAL YEAR 2012, at 16 (2013), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2012AR.pdf. 19 Id. at 19. 20 38 U.S.C. §§7252, 7266. Congressional Research Service 3 Overview of the Appeal Process for Veterans’ Claims 20 The CAVC is an Article I court, established by Congress, which has exclusive jurisdiction over appeals from the BVA.21 21 Currently, up to nine judges may sit on the CAVC and review appeals from the BVA.2222 The CAVC is a separate entity from the VA, but reviews BVA decisions. The VA’'s General Counsel will defend the BVA decision before the court.2323 The CAVC is also a busy tribunal; in FY2012 the CAVC received 3,649 appeals.2424 Chief Judge Kasold has noted that the CAVC “"has become one of the busiest federal appellate courts based on the numbers of appeals filed and decided per judge.”25 "²⁵ The Court of Appeals for the Federal Circuit If the claimant is dissatisfied with the determination reached by the CAVC, the claimant may appeal the decision to the Court of Appeals for the Federal Circuit (Federal Circuit).2626 The scope of review on veterans’' appeals provided by the Federal Circuit is limited by statute. The Federal Circuit can set aside regulations that are arbitrary or capricious, unconstitutional, in excess of statutory jurisdiction, or procedurally deficient.2727 Generally, the Federal Circuit is not permitted to review any challenge to a factual determination, or a “"challenge to a law or regulation as applied to the facts of a particular case.”28"²⁸ The Federal Circuit provides the last appeal of right for claimants appealing decisions made by the BVA. The Supreme Court of the United States Finally, if the claimant is still not satisfied by the decision reached by the Court of Appeals for the Federal Circuit, the claimant may petition the Supreme Court for certiorari.2929 The Supreme Court may or may not decide to hear the case—the claimant is not guaranteed to have the Supreme Court hear the appeal. If the Supreme Court grants certiorari (hears the case) any decision provided by the Supreme Court is final. Legal Representation Legal Representation The VA has established that a claimant “"will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person.”30"³⁰ The VA sets out certain requirements that a representative must meet in order to assist a claimant during 21 38 U.S.C. §§7251–7252. 38 U.S.C. §7253 (establishing that there may be up to nine judges sitting on the CAVC, if two additional judges are appointed by January 1, 2013). 23 See 38 U.S.C. §7263. 24 UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS, ANNUAL REPORT: FISCAL YEAR 2012, at 1 (2013), available at http://www.uscourts.cavc.gov/documents/FY2012AnnualReport.pdf. 25 Budget Hearing for Fiscal Year 2013 Before the Subcomm. on Disability Assistance and Memorial Affairs of the H. Comm. on Veterans’ Affairs, 112th Cong. (2012) (statement of Bruce Kasold, Chief Judge, Court of Appeals for Veterans Claims) available at http://veterans.house.gov/witness-testimony/the-honorable-bruce-e-kasold. 26 38 U.S.C. §7292. 27 38 U.S.C. §7292(d)(1). 28 38 U.S.C. §7292(d)(2). 29 38 U.S.C. §7292(c). 30 38 C.F.R. §20.600. 22 Congressional Research Service 4 Overview of the Appeal Process for Veterans’ Claims the appeal process.3131 The VA strongly encourages claimants to seek representation and a vast majority of claimants are represented.3232 Claimants, however, are not required to have representation in the appeal process and may represent themselves. Veterans’ Veterans Service Organizations (VSOsVSO) may provide trained representatives to the claimant free of charge.3333 The vast majority of claimants are represented by VSO representatives—in 2000, the BVA noted that approximately 85% of claimants were represented by a VSO.34 34 Other veterans elect to hire an attorney or a recognized “agent”"agent" to represent them during the appeal. Attorneys and recognized agents, however, may charge for their services rendered.35 35 Regulations provide that fees “"may be based on a fixed fee, hourly rate, a percentage of benefits recovered, or a combination of such bases.”36"³⁶ Fees must be reasonable and fee agreements must be filed with the VA Office of the General Counsel.37 37 Veterans must fill out VA Form 21-22 if they wish to be represented by a VSO or fill out VA Form 21–22a if they wish to have an attorney or authorized agent provide representation.38 VA’38 VA's Duty to Assist Claimants The VA has various legal obligations to assist the claimant and to ensure that a proper claim for benefits is filed. These obligations include assisting the claimant to obtain evidence,3939 ensuring the claimant has the necessary forms and instructions,4040 and notifying the claimant if additional information is needed.41 41 Federal regulations further require the VA to render a “"decision which grants every benefit that can be supported in law while protecting the interests of the Government.”42"⁴² Therefore, the VA is obligated to consider every legal theory that could support a claim for benefits. Finally, the VA is obligated to weigh evidence in favor of the claimant when reaching its determination. Under 38 U.S.C. §5107(b), “"[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.”" Therefore, in order to deny a claim for benefits, the preponderance of the evidence must show that the claimant should not be entitled to the benefits sought. 31 38 C.F.R. §14.629. See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 12 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 33 38 C.F.R. §14.636(b) (stating that recognized organizations “are not permitted to receive fees”). 34 Id. 35 38 C.F.R. §14.636(b) (stating that “only accredited agents and attorneys may receive fees from claimants ... for their services provided in connection with representation”). 36 38 C.F.R. §14.636(e). 37 Id.; 38 C.F.R. §14.636(g)(3). 38 38 C.F.R. §14.631. 39 38 U.S.C. §5103(A). 40 38 U.S.C. §5102 (stating that forms must be provided free of charge). 41 38 U.S.C. §§5102(b), 5103(a). 42 38 C.F.R. §3.103(a). 32 Congressional Research Service 5 Overview of the Appeal Process for Veterans’ Claims Whenever the VA reaches a determination, both on the initial application and on appeal, the VA must provide notice of the decision and “"an explanation of the procedure for obtaining review of the decision.”43 "⁴³ The VA Appeal Process Notice of Disagreement After a claimant has received an initial determination from the local RO, a dissatisfied claimant may initiate the appeal process. In order to begin the appeal, the claimant must first submit a Notice of Disagreement (NOD).4444 The NOD is the first step in letting the VA know that a claimant wishes to appeal a decision. There is no specific form that needs to be filled out for the NOD.45 45 The claimant must simply submit, in writing, a statement declaring that the claimant disagrees with the RO’'s initial determination and that the claimant wants to appeal that initial decision.46 46 The claimant should be specific about whether the entire decision is being appealed or only part of the decision is being appealed.4747 Also, at this stage of the appeal process, a claimant may make a request to undergo DRO review, instead of taking the traditional review straight to the BVA.48 48 Where and When to Send the NOD In most circumstances, the NOD must be sent to the local office that made the initial determination.4949 However, if the claimant has moved, the NOD should be mailed to the local VA office that is currently handling the claimant’'s file.5050 The NOD must be submitted within one year from when the local VA office mails the initial determination.5151 After one year has passed, the decision is deemed to be final, except in rare circumstances.52 43 38 U.S.C. §5104(a). 38 U.S.C. §7105(a). 45 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 7–8 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 46 38 C.F.R. §20.201. 47 Id. 48 38 C.F.R. 3.2600(b). Note, that the claimant may undergo DRO review and still proceed to the traditional review by the BVA if the claimant is not satisfied with the DRO decision. 49 38 C.F.R. §20.300. 50 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 8 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 51 38 U.S.C. §7105(b)(1). 52 Id.; see also BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 8 (2000), available at http://www.ptsdmanual.com/y2000.pdf (noting that a determination may not be deemed final if the decision involved “clear and unmistakable error by the VA”). 44 Congressional Research Service 6 Overview of the Appeal Process for Veterans’ Claims DRO Review and Statement of the Case After the local VA office receives the claimant’s NOD, the office will begin setting up the claim for appeal. The next step in the process depends on whether the claimant decides to pursue the traditional appeal process or to ask for DRO review of the claim. If the claimant decides to pursue the traditional review process, either a Rating Veterans Service Representative (RSVR) or a DRO53 will reexamine the claim file and review any new evidence the veteran has provided.54 Under the traditional form of review, the reviewing RVSR or DRO may only overturn the original decision based on new evidence or for a clear and unmistakable error made in the original decision.55 If the claimant requests DRO review, the DRO will begin to look over the claim again from decision is deemed to be final, except in rare circumstances.⁵² VA Proposed Rule Change Regarding NOD Form

In response to the number of appeals being handled by the VA, the agency established a working group in 2011 to determine whether any changes could be made to the appeal process that would increase efficiency.⁵³ The working group determined that the "NOD control time"—the time it takes for an RO to identify a communication as an NOD after receiving it from the claimant—could be reduced by creating a standardized form for submitting an NOD.⁵⁴ The working group noted that because an NOD does not have to be submitted in any particular style or form, it can be difficult for VA officials to identify certain correspondence as an NOD and to identify exactly which portions of the decision the claimant intends to appeal.⁵⁵

The working group established a pilot program, at the Houston RO, that created a standardized NOD form to be used to initiate appeals for compensation claims.⁵⁶ The working group found that standardizing the NOD form reduced the NOD control time at the Houston RO—the average NOD control time when using a standardized form was seven days, compared to the 88-day average NOD control time for the traditional NOD process.⁵⁷

On October 31, 2013, the VA published a proposed rule in the Federal Register that would adopt the pilot program's procedure and alter the current process for initiating an appeal at the VA.⁵⁸ The proposed rule would require claimants to file an NOD on a standardized form, when that form is provided to the claimant by the VA.⁵⁹ If the proposed rule becomes finalized, a traditional NOD sent to the VA would not be sufficient to start the appeal process when the VA has provided the claimant with a standardized form.⁶⁰ However, under the proposed rule, if the VA does not provide an NOD form to a claimant, then the VA would accept a traditional NOD. In promulgating the rule, the VA is relying on its authority under 38 U.S.C. Section 501(a), which states that the VA has authority to prescribe "the forms of application by claimants."⁶¹ The comment period for this proposed rule closed on December 30, 2013.⁶²

DRO Review and Statement of the Case

After the local VA office receives the claimant's NOD, the office will begin setting up the claim for appeal. The next step in the process depends on whether the claimant decides to pursue the traditional appeal process or to ask for DRO review of the claim. If the claimant's NOD does not indicate whether he wishes to pursue DRO review, the VA will send the claimant a letter that explains the DRO process and asks the claimant to decide whether the claimant will undergo DRO review or the traditional appeal process.⁶³ If the claimant does not respond within 60 days, the appeal will follow the traditional process.⁶⁴

If the claimant decides to pursue the traditional review process, either a Rating Veterans Service Representative (RSVR) or a DRO⁶⁵ will reexamine the claim file and review any new evidence the veteran has provided.⁶⁶ Under the traditional form of review, the reviewing RVSR or DRO may only overturn the original decision based on new evidence or for a clear and unmistakable error made in the original decision.⁶⁷

If the claimant requests DRO review, the DRO will begin to look over the claim again from scratch. Under DRO review, the DRO will review the claim de novo—that is, they will provide no deference to the initial decision reached by the VA.5668 In this form of review, there does not need to be any new evidence nor any clear and unmistakable error for the DRO to overturn the initial decision. The DRO may not revise the initial decision “"in a manner that is less advantageous to the claimant”" unless the DRO finds an instance of “"clear and unmistakable error.”57"⁶⁹ The DRO may hold informal conferences as well as formal hearings with the claimant regarding the claim.5870 After reviewing the claim, the DRO will send a new decision to the claimant along with “"a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision.”59 "⁷¹ Regardless of whether the claimant elects DRO review or the traditional review, the reviewer will make a decision to allow or deny the claim. If the reviewer allows the claim, then the claimant has won his appeal and the appeal process ends. If the reviewer decides not to grant the claimant’s 's request for benefits, then they will send a notice to the claimant and the claimant may continue with the appeal process. When the VA provides the claimant with notice stating that the claim will be denied, they will also provide the claimant with a Statement of the Case (SOC).6072 The SOC is a document that summarizes the evidence, laws, and regulations that were used to make a determination in the claim and explains why the VA reached the decision.61 The local VA office 53 See supra note 8 and accompanying text. See 38 C.F.R. §19.26; DEPARTMENT OF VETERANS AFFAIRS, NOTICE OF DISAGREEMENT, M21-1MR, PART I, CHAPTER 5, SECTION B (2011), available at http://www.benefits.va.gov/WARMS/M21_1mr1.asp; see also GAO, VETERANS DISABILITY BENEFITS: CLEARER INFORMATION FOR VETERANS AND ADDITIONAL PERFORMANCE MEASURES COULD IMPROVE APPEAL PROCESS 4 (2011). 55 See DEPARTMENT OF VETERANS AFFAIRS, NOTICE OF DISAGREEMENT, M21-1MR, PART I, CHAPTER 5, SECTION B (2011), available at http://www.benefits.va.gov/WARMS/M21_1mr1.asp; see also GAO, VETERANS DISABILITY BENEFITS: CLEARER INFORMATION FOR VETERANS AND ADDITIONAL PERFORMANCE MEASURES COULD IMPROVE APPEAL PROCESS 4 (2011). 56 38 C.F.R. §3.2600(a). 57 38 C.F.R. §§3.2600(d), 3.2600(e). 58 38 C.F.R. §3.2600(b). 59 38 C.F.R. §3.2600(d). 60 38 U.S.C. §7105(d); 38 C.F.R. §§3.2600(f), 19.26(d). 61 38 C.F.R. §19.29. 54 Congressional Research Service 7 Overview of the Appeal Process for Veterans’ Claims 73 The local VA office will also send a blank VA Form 9, which must be filled out and returned to continue the appeal process.62 74 The Substantive Appeal: VA Form 9 The VA will send the claimant a blank VA Form 9 along with the Statement of the Case. The VA Form 9 must be filled out to continue the appeal process.6375 The claimant has sixty days from when the Statement of the Case was mailed or one year from when the initial determination was mailed, whichever is longer, to submit the VA Form 9 to the local VA office.6476 The claimant may seek a deadline extension for submitting the VA Form 9, but must show good cause by providing an explanation for why the additional time is needed.65 77 When filling out the form, the claimant will have the opportunity to state whether he/she wishes to have a hearing with the BVA, to point out any mistakes that were made on the SOC, and to establish why the claimant believes the VA made an incorrect decision when determining the claim.6678 The form provides detailed instructions for properly completing the substantive appeal. The claimant may add new evidence when the VA Form 9 is submitted to the VA office.6779 If the VA office receives any new evidence from the claimant, the VA office will prepare a Supplemental Statement of the Case (SSOC) and mail it to the claimant.6880 The claimant will then have thirty days to notify the VA office of any mistakes found in the SSOC.69 81 Once the VA Form 9 has been completed and submitted, the claimant has fulfilled his obligations for filing the appeal.7082 The local VA office will certify the case to the BVA after it receives the completed VA Form 9.71 83 BVA Docket and Docket Number Once the case has been certified to the BVA, the BVA will then give the claim a docket number. The claim will be heard in the order in which it was received, as the BVA is obligated by law to hear claims on a first come, first served bases.7284 A claimant may file “"a motion to advance on the docket” docket" in order to have their case heard more quickly.73 However, these motions are only granted 62 38 C.F.R. §19.30(b). 38 U.S.C. §7105(a). 64 38 C.F.R. §20.302(b). 65 38 C.F.R. §20.303. 66 To review a copy of VA Form 9, please see DEPARTMENT OF VETERANS AFFAIRS, APPEAL TO THE BOARD OF VETERANS’ APPEALS, VA FORM 9 (2009), available at http://www.va.gov/vaforms/va/pdf/VA9.pdf. 67 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 10 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 68 38 C.F.R. §19.31. 69 38 C.F.R. §20.302(c). The claimant is not obligated to respond to the SSOC. Id. 70 38 C.F.R. §20.202 (“Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal.”); See also BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 14 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 71 38 C.F.R. §19.35. 72 38 U.S.C. §7107(a); 38 C.F.R. §§20.900(a), 20.900(b). 73 38 U.S.C. §7107(a)(2); 38 C.F.R. §20.900(c). 63 Congressional Research Service 8 Overview of the Appeal Process for Veterans’ Claims 85 However, these motions are only granted under rare circumstances—the claimant will have to provide the BVA, in writing, a strong reason for moving the claim up on the docket, such as an imminent foreclosure, bankruptcy, or terminal illness.7486 The claimant should also provide any evidence of such a situation to the BVA at the time the motion is filed. Hearings with the BVA When the claimant submits VA Form 9, the claimant will indicate whether he wishes to have a hearing with a Board member from the BVA. There are three kinds of hearings: 1) an in-person hearing at the local RO; 2) an in-person hearing in Washington, DC; or 3) a teleconference hearing.7587 The teleconference hearing takes place at a local VA office, while the Board member is in Washington, DC. The BVA notes that teleconference hearings are typically the fastest to arrange, as they do not require any travel.7688 The BVA has also noted that it is working to make teleconference hearings more widely available and to upgrade their teleconference technology.77 89 Unlike court proceedings, hearings are informal and nonadversarial. The Board member generally will explain how the hearing will take place, ask the claimant to take an oath, and provide the claimant with the opportunity to present any information or evidence that the claimant believes is relevant and material.7890 The presiding Board member “"may set reasonable time limits”" for the argument and may exclude evidence that is “"not relevant or material to the issue.”79"⁹¹ The claimant can be represented at a BVA hearing.8092 The hearing may be documented in a transcript, which is also added to the file for review by the Board.81 93 Adding Additional Evidence to the Claim File and the 90-Day Rule A veteran is permitted to submit additional evidence prior to the BVA reviewing the claim file. The claimant may even submit additional evidence at the hearing, if the claimant has elected to have a hearing with a Board member.8294 Therefore, the claimant should submit any new medical evidence from recent treatments, additional statements, and anything else the claimant believes is material to the claim as soon as the claimant receives it. If the claimant’'s file is still located at the local VA office, any additional evidence should be submitted to that office. At this point, as stated earlier, the local VA office will provide the 74 See id. 38 C.F.R. §20.700(e), 20.705; see also BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-02-02A, HOW DO I APPEAL? 8 (2002), available at http://www.bva.va.gov/docs/Pamphlets/010202A.pdf. 76 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-02-02A, HOW DO I APPEAL? 8 (2002), available at http://www.bva.va.gov/docs/Pamphlets/010202A.pdf. 77 BOARD OF VETERANS’ APPEALS, REPORT OF THE CHAIRMAN: FISCAL YEAR 2011, at 9 (2012), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2011AR.pdf. 78 BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-02-02A, HOW DO I APPEAL? 9 (2002), available at http://www.bva.va.gov/docs/Pamphlets/010202A.pdf. 79 38 C.F.R. §20.700(c). 80 See supra notes 30–38 and accompanying text. 81 38 C.F.R. §20.714 (noting that transcript will be prepared and put into claims folder if certain conditions are met). 82 38 C.F.R. §20.1304(a). 75 Congressional Research Service 9 Overview of the Appeal Process for Veterans’ Claims submitted to that office. At this point, as stated earlier, the local VA office will provide the claimant with a Supplemental Statement of the Case.8395 As the claim gets close to being considered by the BVA, the local VA office will forward the claim file to the BVA. The local office will send the claimant a notice, informing them that the claim file has been transferred to the BVA.8496 Furthermore, the BVA will send the claimant a notice when it receives the file. If the file has already been forwarded to the Board, the claimant should send additional evidence directly to the BVA. In the past, the BVA was required to remand the case to the local RO to perform an initial review of any new evidence.8597 However, the Honoring America’'s Veterans and Caring for Camp Lejeune Families Act of 2012—enacted into law in August 2012—provides for an automatic waiver of RO review of new evidence submitted to the BVA and, therefore, allows the BVA to evaluate the evidence in the first instance.8698 The BVA called for this legislative change to help avoid unnecessary remands.8799 Under the new law, if the claimant desires, the claimant may still request to have the local RO review the new evidence prior to having the BVA review and decide the case.88 100 There is a time limit for submitting evidence once the Board has received the file. The claimant must submit any additional evidence, or a request for a hearing (if the claimant had not already requested one), within 90 days after the BVA has received the claim file, or up until the BVA actually decides the case (whichever comes first).89101 If the claimant wishes to submit information or evidence after the 90 days have passed, he or she must submit a motion to the BVA asking for the evidence to be accepted and must show good cause for missing the deadline.90102 However, the claimant may present additional evidence during the hearing, even if the hearing is held following the expiration of the 90-day period.91 103 BVA Review of Claim After the hearing, a Board member and a staff attorney will be assigned to review the claim file. The Board member will ensure the file is complete and evaluate all the evidence, forms, written arguments, and hearing transcripts.92104 The staff attorney will function similarly to a clerk for a judge and perform any additional research that is necessary.93105 The staff attorney may also make recommendations for the Board member to review. At this point, the Board member will make a decision on the appeal. 83 38 C.F.R. §19.31. 38 C.F.R. §19.36. 85 38 C.F.R. §20.1304(c) (2011). 86 P.L. 112-154, §501. 87 See BOARD OF VETERANS’ APPEALS, REPORT OF THE CHAIRMAN: FISCAL YEAR 2011, at 6 (2012), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2011AR.pdf. 88 P.L. 112-154, §501. 89 38 C.F.R. §20.1304(a). 90 38 C.F.R. §20.1304(b). 91 38 C.F.R. §20.1304(a). 92 BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 22 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 93 Id. at 22–23. 84 Congressional Research Service 10 Overview of the Appeal Process for Veterans’ Claims decision on the appeal. Amount of Time for BVA to Reach a Decision It is uncertain how long it may take the BVA to reach a decision on an appeal. According to the 2012 BVA’'s Report of the Chairman, the “"average length of time between the filing of an appeal ... and the Board’'s disposition of the appeal was 1,040 days.”94"¹⁰⁶ The Board has noted that a focus for fiscal years 2013 and 2014 will be to reduce the backlog of cases by increasing efficiency.95 BVA Decisions 107 BVA Decisions The BVA will notify the claimant of its decision by mailing a notice to the claimant’'s address as listed in the claim file. The notice will state the decision and explain the legal basis for reaching that conclusion.96108 The BVA will reach one of three decisions. First, the Board may approve the claim and grant the claimant the benefit sought. If the BVA approves the claim, the claimant wins and the appeal is over. Second, the Board may remand the claim. If the Board remands the claim, the Board member has determined that additional information is needed in order to make the proper decision on the appeal.97109 This is sometimes referred to as “"additional development.”98"¹¹⁰ Upon remand, the claim folder will be returned to the local VA office to perform the additional work needed on the claim.99111 The local VA office, after obtaining the necessary information, will then make another decision on the claim.100112 If the local VA office still believes that the claim cannot be approved, the local VA office will send the claim folder back to the BVA.101113 The claim will maintain its initial place on the BVA docket, so it will be heard by the Board more quickly upon its return.102 The 114 The BVA will then review the claim file again and reach a decision. Third, the BVA may deny the claim. If the BVA denies the claim, the Board member has determined that the claimant is not entitled to the compensation or benefit sought. The BVA will provide a statement outlining the claimant’'s rights and explaining what further steps may be taken to review the decision.103115 The claimant may continue with the appeal, as discussed below, or accept the BVA’s decision. 94 BOARD OF VETERANS’ APPEALS, REPORT OF THE CHAIRMAN: FISCAL YEAR 2012, at 19 (2013), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2012AR.pdf. 95 Id. at 6–8. 96 38 C.F.R. §19.7. 97 38 C.F.R. §19.9. 98 BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 24 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 99 38 C.F.R. 19.38. 100 Id. 101 Id. 102 38 C.F.R. §20.900(a). 103 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 23 (2000), available at http://www.ptsdmanual.com/y2000.pdf. Congressional Research Service 11 Overview of the Appeal Process for Veterans’ Claims 's decision. Reconsideration of BVA Decisions If a claimant wishes to appeal the BVA’'s decision, the claimant may make an appeal to the United States Court of Appeals for Veterans Claims (CAVC), discussed below. However, there are also additional motions the claimant may file directly with the BVA in order to have the decision reconsidered. Motion for Reconsideration If the claimant is able to demonstrate that the BVA made an obvious error of fact or law in its decision, the claimant may file a “"motion to reconsider”" with the BVA.104116 A motion for reconsideration “"may be filed at any time.”105"¹¹⁷ This motion should be sent directly to the BVA and not to the local VA office.106118 If the motion is allowed by the BVA, the claimant may request an additional hearing before the Board.107119 In order to be successful, the claimant must show that the BVA made an obvious error of law or fact, and that the BVA’'s decision would have been different if the error had not occurred.108120 The Code of Federal Regulations sets forth the information that must be included with the motion in order for the motion to be considered.109 121 Reopening the Case The claimant may request to have the case reopened only if the claimant has obtained “"new and material” material" evidence relating to the claim.110122 Evidence will only be considered “"new and material” " if it relates to the original case and was not included in the claims folder at the time the BVA reviewed the case.111123 In order to reopen a case, the claimant should submit the new evidence to the local VA office, not to the BVA.112 CUE Motion 124 CUE Motion If the appellant believes that the BVA made a crucial error in reaching the decision, the appellant may file a motion with the BVA to revise the determination for “"clear and unmistakable error” " (CUE).113125 In order to succeed, the BVA must determine that, but for the error, the BVA would have reached a different decision.114126 A mere difference in opinion is not sufficient. Regulations promulgated by the VA provide a few examples of what does not constitute a clear and 104 38 U.S.C. §7103. 38 C.F.R. §20.1001(b). 106 Id. 107 38 C.F.R. §20.1003. 108 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 27 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 109 38 C.F.R. §20.1001(a). 110 38 U.S.C. §§7104(b), 5108. 111 38 C.F.R. §3.156(a). 112 See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS 27 (2000), available at http://www.ptsdmanual.com/y2000.pdf. 113 38 U.S.C. §7111. 114 38 C.F.R. §20.1403(a). 105 Congressional Research Service 12 Overview of the Appeal Process for Veterans’ Claims not constitute a clear and unmistakable error, including a changed medical diagnosis, a changed interpretation of a statute or regulation, or the failure to fulfill the VA’'s duty to assist the claimant.115127 This list illustrates the difficulty of establishing a clear and unmistakable error. If a CUE motion is denied, the appellant cannot request another CUE review on the same issue.116 128 The claimant may file a CUE motion at any time by sending the motion directly to the BVA.117 129 However, if the appellant files a motion for CUE after filing an appeal to the Court of Appeals for Veterans Claims, or if the appellant files an appeal to the Court of Appeals for Veterans Claims prior to the BVA reaching a determination on the motion, the BVA will stay the CUE proceeding until the CAVC appeal has been concluded.118 130 Appealing a BVA Decision to the Courts Court of Appeals for Veterans Claims (CAVC) The Court of Appeals for Veterans Claims, an Article I court, has exclusive jurisdiction over appeals from the Board of Veterans Appeals. 119 ¹³¹ In order to have the CAVC hear an appeal from the BVA, the appellant must submit a notice of appeal to the court within 120 days from the date that the BVA mailed its decision.120132 Only the claimant may file an appeal to the CAVC, the VA does not have the right to have a decision of the BVA reviewed.121 133 The CAVC will reach its determination by reviewing the record from the BVA and the written arguments provided by the appellant and the VA.122134 Although the CAVC is authorized to hear oral arguments, a vast majority of cases are decided without such argument.123135 The CAVC is not permitted to review de novo a determination of fact made by the BVA. 124136 Depending on the nature and complexity of the case, either one judge, a panel of three judges, or the entire court will render a decision on the case.125137 Again, in a vast majority of cases, one judge will make a decision on the case.126 115 38 C.F.R. §20.1403(d). 38 C.F.R. §20.1409(c). 117 38 C.F.R. §20.1404(c). 118 38 C.F.R. §20.1410. 119 38 U.S.C. §§7251–7252. 120 38 U.S.C. §7266. Please see infra, notes 130–48 and accompanying text for discussion on caselaw regarding 120day deadline for filing an appeal with the CAVC. 121 38 U.S.C. §7252. 122 38 U.S.C. §7261(b). 123 According to the CAVC’s Report for the 2012 fiscal year, only 18 oral arguments were heard by the court. UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS, ANNUAL REPORT: FISCAL YEAR 2012, at 4 (2013), available at http://www.uscourts.cavc.gov/documents/FY2012AnnualReport.pdf. 124 38 U.S.C. §7261(c). 125 See 38 U.S.C. 7267; UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS, ANNUAL REPORT: FISCAL YEAR 2012, at 3 (2013). 126 According to the CAVC’s Annual Report for the 2012 fiscal year, over 2,000 appeals were heard by a single judge, while only 22 cases were heard by a three-judge panel and only 1 case was heard by the full court. UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS, ANNUAL REPORT: FISCAL YEAR 2012, at 3 (2013). 116 Congressional Research Service 13 Overview of the Appeal Process for Veterans’ Claims decision on the case.¹³⁸ If the CAVC rules in favor of the appellant, the case can be remanded to the BVA in order to implement the CAVC’'s ruling.127139 If the CAVC denies the appellant’'s claim, the appellant may seek further review at the United States Court of Appeals for Federal Claims.128140 The VA may also appeal a CAVC decision.129 141 120-Day Filing Deadline: Henderson v. Shinseki The 120-day deadline for filing an appeal to the CAVC has prompted considerable interest from courts and Congress. For years, the 120-day deadline was viewed as a procedural requirement, and thus subject to equitable tolling—that is, missing the deadline did not automatically preclude review by the CAVC.130142 However, after the Supreme Court decision in Bowles v. Russell,131 the ,¹⁴³ the CAVC and U.S. Court of Appeals for Federal Claims determined that the deadline was actually a jurisdictional requirement—that is, an appeal made after the deadline could not be heard by the CAVC for any reason.132144 However, in 2011, the Supreme Court clarified that the CAVC deadline was not jurisdictional and, therefore, an appeal will not necessarily be precluded if the deadline is missed.133 145 In 2001, David Henderson filed a claim with the VA for compensation based on his need for inhome care.134in-home care.¹⁴⁶ His claim was denied by the VA Regional Office and was subsequently denied by the BVA.135147 After the BVA denied his claim, Henderson appealed the decision to the CAVC.136 148 However, his notice of appeal was filed fifteen days after the 120-day filing deadline had expired.137149 The CAVC, in a 2-1 decision, relied on the Supreme Court’'s recent Bowles v. Russell decision and dismissed his appeal for lack of jurisdiction due to the missed deadline.138150 The Court of Appeals for Federal Claims concurred with the CAVC, noting that the 120-day deadline was jurisdictional, and thus mandatory.139 151 The Supreme Court granted certiorari and oral arguments were held late in 2010.140152 The Court reviewed whether “"a veteran’'s failure to file a notice of appeal within the 120-day period should be regarded as having ‘jurisdictional’ consequences.”141'jurisdictional' consequences."¹⁵³ In March 2011, the Court unanimously determined that the deadline was not jurisdictional and that missing the deadline does not 127 If the CAVC remands the case back to the BVA, the BVA must handle the case “expeditiously ... without regard to its place on the Board’s docket.” 38 C.F.R. §20.900(d). 128 38 U.S.C. §7292(a). 129 Id. 130 Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998). 131 551 U.S. 205 (2007) (holding, in a case that did not involve a veteran’s claim, that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement”). 132 Henderson v. Peake, 22 Vet. App. 217 (2008); Henderson v. Shinseki, 589 F.3d 1201 (2009). 133 Henderson v. Shinseki, 131 S. Ct. 1197 (2011). 134 Id. at 1201. 135 Id. 136 Id. 137 Id. 138 Henderson v. Peake, 22 Vet. App. 217, 221 (2008). 139 Henderson v. Shinseki, 589 F.3d 1201, 1220 (2009). 140 Henderson v. Shinseki, 131 S. Ct. 1197 (2011). 141 Id. at 1200. Congressional Research Service 14 Overview of the Appeal Process for Veterans’ Claims not jurisdictional and that missing the deadline does not necessarily preclude the CAVC from hearing an appeal.142154 The Court noted that Congress had taken great care to ensure that the system for awarding veterans benefits greatly favors veterans. Thus, the Court determined that Congress did not intend the 120-day deadline to be a jurisdictional rule.143155 However, the Court did state that the deadline is an “"important procedural rule” rule" and remanded the case to the Federal Circuit to determine whether the appellant’s “case 's "case falls within any exception to the rule.”144"¹⁵⁶ Therefore, although the Court established that the deadline was not mandatory, it provided no guidance for when a case could still be heard even after the deadline was missed. The CAVC, in 2011, issued a ruling that provides context to when the court would still hear an appeal even after the deadline is missed.145157 The CAVC, prior to its decision in Henderson v. Shinseki Shinseki, already had a test for determining when equitable tolling would be permissible. Therefore, it returned to its previous jurisprudence on the issue.146158 It stated: , The doctrine of equitable tolling has generally established parameters, and over time decisions of the Federal Circuit and this Court have addressed those parameters in the context of appeals to this Court. Thus, for example, equitable tolling was not applied when failure to file was due to general negligence or procrastination. Rather, it was applied only when circumstances precluded a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one’'s own affairs or other extraordinary circumstances beyond one’'s control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional office or the Board.147 159 The CAVC held that if an appellant accidentally files the notice of appeal at the wrong location— for example, at the BVA instead of with the CAVC—but the notice of appeal is otherwise timely, equitable tolling is appropriate.148160 It also held that, although mental illness can be a reason to find equitable tolling to be appropriate, the appellant must demonstrate that he is actually “incapable "incapable of functioning or making decisions due to mental illness, that his mental illness prevented him from filing his appeal or seeking the assistance of counsel, or that his mental disabilities were related directly to his untimely filing.”149"¹⁶¹ Therefore, although the 120-day deadline is not “ "jurisdictional,”" it still precludes review from the CAVC in many circumstances. Congress has alsopreviously proposed legislation that would alter the 120-day filing period.150 142 Id. at 1206. Id. at 1205–06. 144 Id. at 1206. 145 Bove v. Shinseki, 25 Vet. App 136 (2011). 146 Id. at 143. 147 Id. at 140. 148 Id. at 143–44. 149 Id. at 144. 150 See supra Appendix. 143 Congressional Research Service 15 Overview of the Appeal Process for Veterans’ Claims 162 Court of Appeals for the Federal Circuit and the Supreme Court The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has exclusive jurisdiction to hear appeals from a CAVC decision.151163 The Federal Circuit provides the last appeal of right during the appeal process. By statute, the review provided by the Federal Circuit is rather limited. The Federal Circuit is not permitted to review “"(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.”152"¹⁶⁴ The Federal Circuit can only review actions to see if they are arbitrary or capricious, unconstitutional, in excess of statutory jurisdiction, or procedurally deficient.153165 The Federal Circuit may modify, reverse, or remand decisions by the CAVC, as appropriate.154166 If either party is dissatisfied with the ruling from the Federal Circuit, an appeal may be made to the Supreme Court of the United States. The Supreme Court does not have to hear the case and may deny certiorari. If the Supreme Court decides to hear the case, any decision reached by the Court is final. 151 38 U.S.C. §7292. 38 U.S.C. §7292(d)(2). 153 38 U.S.C. §7292(d)(1). 154 38 U.S.C. §7292(e). 152 Congressional Research Service 16 Overview of the Appeal Process for Veterans’ Claims Appendix. Proposed Legislation in the 112th and 113th Congresses Proposed Legislation in the 113th Congress Early in the 113th Congress, Representative Titus introduced legislation that would require the VA to “include an appeals form in any notice of decision issued for the denial of a benefit sought.”155 Currently, as discussed above, the VA is required to give notice to any claimant of the right to appeal when it provides the claimant with a notice of decision that may be appealed. The VA Form 9, which must be filled out to complete an appeal with the BVA, is sent to the claimant along with the Statement of the Case after a Notice of Disagreement is filed by the claimant with the VA. Proposed Legislation in the 112th Congress A number of bills were introduced during the 112th Congress that, if enacted, would have altered the appeal process. Several of these proposals were previously introduced during the 111th Congress. Streamlining the Appeal Process Bills introduced in the House and Senate contained residency requirements for judges on the U.S. Court of Appeals for Veterans Claims (CAVC).156 These bills would have required CAVC judges to have an official duty station at the CAVC principle office in the metropolitan area of Washington, DC. Additionally, under the bill, the judges would be required to reside within fifty miles of Washington, DC. This residency requirement would still permit the CAVC to sit any place within the United States. S. 1060, the Senate’s Honoring All Veterans Act of 2011,157 proposed to treat certain misfiled documents as a motion for reconsideration at the BVA. Under the bill, if a claimant who has not yet filed a notice of appeal with the CAVC submits a document that expresses disagreement with a BVA decision to the BVA or the local VA office, the document would be treated as a motion for reconsideration of the Board’s decision.158 However, the document filed with the BVA or local VA office would not be treated as a motion for reconsideration if the Board or VA office determines that such a document expresses an intent to appeal the decision to CAVC and forwards that document to the CAVC. In order to improve the efficiency of the CAVC appeal process with regard to conferences ordered by the CAVC, another Senate bill proposed to require the VA to explain its position to the CAVC 155 H.R. 1405, 113th Cong. (2013). H.R. 4213, 112th Cong. (2011); S. 2045, 112th Cong. (2011). 157 S. 1060, 112th Cong. (2011). 158 Id. at §403. 156 Congressional Research Service 17 Overview of the Appeal Process for Veterans’ Claims and the appellant when the parties are not in agreement concerning a possible remand.159 Under the proposed legislation, if an agreement to remand has not been reached after the CAVC has required parties to participate in a conference to aid the resolution of the case, this bill would require the Secretary of Veterans Affairs to submit, within seven days, a written report to the CAVC and the appellant describing the basis upon which the Secretary remains opposed to the remand. Extension of the 120-Day Limit to File an Appeal to the CAVC H.R. 810, the Fair Access to Veterans Benefits Act of 2011, would have extended the 120-day limit for the filing of an appeal to the CAVC after a final decision of the Board of Veterans’ Appeals.160 Under the proposed law, the appellant would have to show good cause for missing the deadline, which is considered in the act to be the inability to file within the 120-day period due to a service-connected disability. H.R. 810 mirrored H.R. 5064, the Fair Access to Veterans Benefits Act of 2010, which was introduced in the 111th Congress.161 Author Contact Information Daniel T. Shedd Legislative Attorney dshedd@crs.loc.gov, 7-8441 159 S. 1172, 112th Cong. (2011). H.R. 810, 112h Cong. (2011)(stating this provision would apply to all final BVA decisions issued on or after July 27, 2008). 161 See H.R. 5064, 111th Cong. (2010). 160 Congressional Research Service 18 Court decides to hear the case, any decision reached by the Court is final. Appendix. Proposed Legislation in the 113^th Congress

Early in the 113^th Congress, the House of Representatives passed H.R. 1405, a bill that would require the VA to "include a notice of disagreement form in any notice of decision issued for the denial of a benefit sought."¹⁶⁷ This bill would change the current process for initiating an appeal by requiring the VA to provide a standardized form for an NOD. This change would be similar to the proposed rule that the VA issued in October 2013, which would create a standardized NOD and require its use.¹⁶⁸

S. 939, introduced by Senator Blumenthal, if enacted, would require the BVA to treat certain misfiled documents as a motion for reconsideration at the BVA.¹⁶⁹ Under the bill, if a claimant who has not yet filed a notice of appeal with the CAVC submits a document that expresses disagreement with a BVA decision to the BVA or the local VA office, the document would be treated as a motion for reconsideration of the Board's decision.¹⁷⁰ However, the document filed with the BVA or local VA office would not be treated as a motion for reconsideration if the Board or VA office determines that such a document expresses an intent to appeal the decision to the CAVC and forwards that document to the CAVC.

Another bill introduced in the Senate, S. 928, proposes several reforms to the appeal process.¹⁷¹ S. 928 would reduce the amount of time that a claimant has to file an NOD with the local VA office in order to start the appeal process.¹⁷² Currently, a claimant has one year to file an NOD; under the bill, a claimant would have only 180 days to file.¹⁷³ However, the bill would allow the VA to accept a late NOD if the claimant can show good cause for missing the filing deadline. The bill would also require hearings before the BVA to be conducted via videoconference, unless the claimant specifically requests an in-person hearing.¹⁷⁴ A bill introduced by Representative Ruiz, H.R. 2119, would permit the VA to determine whether an appellant would have either an in-person or videoconference hearing.¹⁷⁵ However, under that bill, the appellant could still request a different type of hearing, if desired.¹⁷⁶

Footnotes

1.	The Veterans Administration website provides comprehensive information on the benefits available to veterans. See Department of Veterans Affairs, Benefits and Services Available, http://www.va.gov/opa/newtova.asp.
2.	See Board of Veterans' Appeals, VA Pamphlet 01-02-02A, How Do I Appeal? 3 (2002), available at http://www.bva.va.gov/docs/Pamphlets/010202A.pdf.
3.	Id.
4.	38 C.F.R. §19.25.
5.	38 U.S.C. §511(a), 7104(a); 38 C.F.R. §20.101(a).
6.	See Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 7 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
7.	38 C.F.R. §20.101(b).
8.	Department of Veterans Affairs, Decision Review Officer (DRO) Review Process, M21-1MR, Part I, Chapter 5, Section C (2011), available at http://www.benefits.va.gov/WARMS/M21_1mr1.asp.
9.	38 C.F.R. §3.2600(a).
10.	38 C.F.R. §§3.2600(d), 3.2600(e).
11.	38 C.F.R. §3.2600(b).
12.	38 C.F.R. §3.2600(f).
13.	GAO, Veterans Disability Benefits: Clearer Information for Veterans and Additional Performance Measures Could Improve Appeal Process 7 (2011).
14.	38 U.S.C. §7104(a).
15.	38 U.S.C. §7101A.
16.	Board of Veterans' Appeals, Report of the Chairman: Fiscal Year 2012, at 19 (2013), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2012AR.pdf.
17.	See Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 6 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
18.	Board of Veterans' Appeals, Report of the Chairman: Fiscal Year 2012, at 16 (2013), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2012AR.pdf.
19.	Id. at 19.
20.	38 U.S.C. §§7252, 7266.
21.	38 U.S.C. §§7251–7252.
22.	38 U.S.C. §7253 (establishing that there may be up to nine judges sitting on the CAVC, if two additional judges are appointed by January 1, 2013).
23.	See 38 U.S.C. §7263.
24.	United States Court of Appeals for Veterans Claims, Annual Report: Fiscal Year 2012, at 1 (2013), available at http://www.uscourts.cavc.gov/documents/FY2012AnnualReport.pdf.
25.	Budget Hearing for Fiscal Year 2013 Before the Subcomm. on Disability Assistance and Memorial Affairs of the H. Comm. on Veterans' Affairs, 112th Cong. (2012) (statement of Bruce Kasold, Chief Judge, Court of Appeals for Veterans Claims) available at http://veterans.house.gov/witness-testimony/the-honorable-bruce-e-kasold.
26.	38 U.S.C. §7292.
27.	38 U.S.C. §7292(d)(1).
28.	38 U.S.C. §7292(d)(2).
29.	38 U.S.C. §7292(c).
30.	38 C.F.R. §20.600.
31.	38 C.F.R. §14.629.
32.	See Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 12 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
33.	38 C.F.R. §14.636(b) (stating that recognized organizations "are not permitted to receive fees").
34.	Id.
35.	38 C.F.R. §14.636(b) (stating that "only accredited agents and attorneys may receive fees from claimants ... for their services provided in connection with representation").
36.	38 C.F.R. §14.636(e).
37.	Id.; 38 C.F.R. §14.636(g)(3).
38.	38 C.F.R. §14.631.
39.	38 U.S.C. §5103(A).
40.	38 U.S.C. §5102 (stating that forms must be provided free of charge).
41.	38 U.S.C. §§5102(b), 5103(a).
42.	38 C.F.R. §3.103(a).
43.	38 U.S.C. §5104(a).
44.	38 U.S.C. §7105(a).
45.	See Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 7–8 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
46.	38 C.F.R. §20.201.
47.	Id.
48.	38 C.F.R. 3.2600(b). Note, that the claimant may undergo DRO review and still proceed to the traditional review by the BVA if the claimant is not satisfied with the DRO decision.
49.	38 C.F.R. §20.300.
50.	See Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 8 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
51.	38 U.S.C. §7105(b)(1).
52.	Id.; see also Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 8 (2000), available at http://www.ptsdmanual.com/y2000.pdf (noting that a determination may not be deemed final if the decision involved "clear and unmistakable error by the VA").
53.	See Department of Veterans Affairs, Proposed Rule, Standard Claims and Appeals Forms, 78 Fed. Reg. 65490, 65497 (October 31, 2013); see also Veterans Benefits Administration, VBA Today 5 (September 2012), available at http://www.vba.va.gov/VBA/newsletter/issue/mar_12.pdf.
54.	78 Fed. Reg. at 65497.
55.	Id.
56.	Id. at 65498.
57.	Id.
58.	78 Fed. Reg. 65490.
59.	Id. at 65498.
60.	Id.
61.	38 U.S.C. §501(a).
62.	78 Fed. Reg. at 65490.
63.	Department of Veterans Affairs, M21-MR Part 1, Claimants Rights and Responsibilities, Ch. 4, Sec. A (2011) available at http://www.benefits.va.gov/WARMS/M21_1mr1.asp.
64.	Id.
65.	See supra note 8 and accompanying text.
66.	See 38 C.F.R. §19.26; Department of Veterans Affairs, Notice of Disagreement, M21-1MR, Part I, Chapter 5, Section B (2011), available at http://www.benefits.va.gov/WARMS/M21_1mr1.asp; see also GAO, Veterans Disability Benefits: Clearer Information for Veterans and Additional Performance Measures Could Improve Appeal Process 4 (2011).
67.	See Department of Veterans Affairs, Notice of Disagreement, M21-1MR, Part I, Chapter 5, Section B (2011), available at http://www.benefits.va.gov/WARMS/M21_1mr1.asp; see also GAO, Veterans Disability Benefits: Clearer Information for Veterans and Additional Performance Measures Could Improve Appeal Process 4 (2011).
68.	38 C.F.R. §3.2600(a).
69.	38 C.F.R. §§3.2600(d), 3.2600(e).
70.	38 C.F.R. §3.2600(b).
71.	38 C.F.R. §3.2600(d).
72.	38 U.S.C. §7105(d); 38 C.F.R. §§3.2600(f), 19.26(d).
73.	38 C.F.R. §19.29.
74.	38 C.F.R. §19.30(b).
75.	38 U.S.C. §7105(a).
76.	38 C.F.R. §20.302(b).
77.	38 C.F.R. §20.303.
78.	To review a copy of VA Form 9, please see Department of Veterans Affairs, Appeal to the Board of Veterans' Appeals, VA Form 9 (2009), available at http://www.va.gov/vaforms/va/pdf/VA9.pdf.
79.	See Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 10 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
80.	38 C.F.R. §19.31.
81.	38 C.F.R. §20.302(c). The claimant is not obligated to respond to the SSOC. Id.
82.	38 C.F.R. §20.202 ("Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal."); See also Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 14 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
83.	38 C.F.R. §19.35.
84.	38 U.S.C. §7107(a); 38 C.F.R. §§20.900(a), 20.900(b).
85.	38 U.S.C. §7107(a)(2); 38 C.F.R. §20.900(c).
86.	See id.
87.	38 C.F.R. §20.700(e), 20.705; see also Board of Veterans' Appeals, VA Pamphlet 01-02-02A, How Do I Appeal? 8 (2002), available at http://www.bva.va.gov/docs/Pamphlets/010202A.pdf.
88.	See Board of Veterans' Appeals, VA Pamphlet 01-02-02A, How Do I Appeal? 8 (2002), available at http://www.bva.va.gov/docs/Pamphlets/010202A.pdf.
89.	Board of Veterans' Appeals, Report of the Chairman: Fiscal Year 2011, at 9 (2012), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2011AR.pdf.
90.	Board of Veterans' Appeals, VA Pamphlet 01-02-02A, How Do I Appeal? 9 (2002), available at http://www.bva.va.gov/docs/Pamphlets/010202A.pdf.
91.	38 C.F.R. §20.700(c).
92.	See supra notes 30–38 and accompanying text.
93.	38 C.F.R. §20.714 (noting that transcript will be prepared and put into claims folder if certain conditions are met).
94.	38 C.F.R. §20.1304(a).
95.	38 C.F.R. §19.31.
96.	38 C.F.R. §19.36.
97.	38 C.F.R. §20.1304(c) (2011).
98.	P.L. 112-154, §501.
99.	See Board of Veterans' Appeals, Report of the Chairman: Fiscal Year 2011, at 6 (2012), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2011AR.pdf.
100.	P.L. 112-154, §501.
101.	38 C.F.R. §20.1304(a).
102.	38 C.F.R. §20.1304(b).
103.	38 C.F.R. §20.1304(a).
104.	Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 22 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
105.	Id. at 22–23.
106.	Board of Veterans' Appeals, Report of the Chairman: Fiscal Year 2012, at 19 (2013), available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2012AR.pdf.
107.	Id. at 6–8.
108.	38 C.F.R. §19.7.
109.	38 C.F.R. §19.9.
110.	Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 24 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
111.	38 C.F.R. 19.38.
112.	Id.
113.	Id.
114.	38 C.F.R. §20.900(a).
115.	See Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 23 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
116.	38 U.S.C. §7103.
117.	38 C.F.R. §20.1001(b).
118.	Id.
119.	38 C.F.R. §20.1003.
120.	See Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 27 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
121.	38 C.F.R. §20.1001(a).
122.	38 U.S.C. §§7104(b), 5108.
123.	38 C.F.R. §3.156(a).
124.	See Board of Veterans' Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 27 (2000), available at http://www.ptsdmanual.com/y2000.pdf.
125.	38 U.S.C. §7111.
126.	38 C.F.R. §20.1403(a).
127.	38 C.F.R. §20.1403(d).
128.	38 C.F.R. §20.1409(c).
129.	38 C.F.R. §20.1404(c).
130.	38 C.F.R. §20.1410.
131.	38 U.S.C. §§7251–7252.
132.	38 U.S.C. §7266. Please see infra, notes 130–48 and accompanying text for discussion on caselaw regarding 120-day deadline for filing an appeal with the CAVC.
133.	38 U.S.C. §7252.
134.	38 U.S.C. §7261(b).
135.	According to the CAVC's Report for the 2012 fiscal year, only 18 oral arguments were heard by the court. United States Court of Appeals for Veterans Claims, Annual Report: Fiscal Year 2012, at 4 (2013), available at http://www.uscourts.cavc.gov/documents/FY2012AnnualReport.pdf.
136.	38 U.S.C. §7261(c).
137.	See 38 U.S.C. 7267; United States Court of Appeals for Veterans Claims, Annual Report: Fiscal Year 2012, at 3 (2013).
138.	According to the CAVC's Annual Report for the 2012 fiscal year, over 2,000 appeals were heard by a single judge, while only 22 cases were heard by a three-judge panel and only 1 case was heard by the full court. United States Court of Appeals for Veterans Claims, Annual Report: Fiscal Year 2012, at 3 (2013).
139.	If the CAVC remands the case back to the BVA, the BVA must handle the case "expeditiously ... without regard to its place on the Board's docket." 38 C.F.R. §20.900(d).
140.	38 U.S.C. §7292(a).
141.	Id.
142.	Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998).
143.	551 U.S. 205 (2007) (holding, in a case that did not involve a veteran's claim, that "the timely filing of a notice of appeal in a civil case is a jurisdictional requirement").
144.	Henderson v. Peake, 22 Vet. App. 217 (2008); Henderson v. Shinseki, 589 F.3d 1201 (2009).
145.	Henderson v. Shinseki, 131 S. Ct. 1197 (2011).
146.	Id. at 1201.
147.	Id.
148.	Id.
149.	Id.
150.	Henderson v. Peake, 22 Vet. App. 217, 221 (2008).
151.	Henderson v. Shinseki, 589 F.3d 1201, 1220 (2009).
152.	Henderson v. Shinseki, 131 S. Ct. 1197 (2011).
153.	Id. at 1200.
154.	Id. at 1206.
155.	Id. at 1205–06.
156.	Id. at 1206.
157.	Bove v. Shinseki, 25 Vet. App 136 (2011).
158.	Id. at 143.
159.	Id. at 140.
160.	Id. at 143–44.
161.	Id. at 144.
162.	H.R. 810, 112th Cong. (2011); H.R. 5064, 111th Cong. (2010).
163.	38 U.S.C. §7292.
164.	38 U.S.C. §7292(d)(2).
165.	38 U.S.C. §7292(d)(1).
166.	38 U.S.C. §7292(e).
167.	H.R. 1405, 113th Cong. §1 (2013).
168.	See Department of Veterans Affairs, Proposed Rule, Standard Claims and Appeals Forms, 78 Fed. Reg. 65490, 65497 (October 31, 2013).
169.	S. 939, 113th Cong. §1 (2013).
170.	Id.
171.	S. 928, 113th Cong. (2013).
172.	Id. at §201.
173.	Id.
174.	Id. at §202.
175.	H.R. 2119, 113th Cong. §2 (2013).
176.	Id.