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
Pr
epared 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” 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.
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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
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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.1 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.2 Veterans Service
Organizations (VSO) are available to provide assistance with applying for benefits.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.4 The claimant is permitted to appeal any decision reached on a claim for
benefits.5 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 service-
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).
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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
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.7 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’ 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
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
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...)
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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.9 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 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.11 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.12 The
Government Accountability Office (GAO) reported that, in 2010, 65% of claimants opted to have
a DRO review their appeal.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).14 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.15 As of 2012, the Board
consisted of 64 members.16 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.17 The BVA has a significant work
load—in the 2012 fiscal year (FY), the BVA received and docketed 49,611 appeals.18 The BVA
expects that number to climb to 54,033 for FY2013.19
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.
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established by Congress, which has exclusive jurisdiction over appeals from the BVA.21
Currently, up to nine judges may sit on the CAVC and review appeals from the BVA.22 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.23 The CAVC is also a busy tribunal; in FY2012 the
CAVC received 3,649 appeals.24 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
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).26 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.27 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 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.29 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
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 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.
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.
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the appeal process.31 The VA strongly encourages claimants to seek representation and a vast
majority of claimants are represented.32 Claimants, however, are not required to have
representation in the appeal process and may represent themselves.
Veterans’ Service Organizations (VSOs) may provide trained representatives to the claimant free
of charge.33 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
Other veterans elect to hire an attorney or a recognized “agent” to represent them during the
appeal. Attorneys and recognized agents, however, may charge for their services rendered.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 Fees must be reasonable and fee agreements must
be filed with the VA Office of the General Counsel.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’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,39 ensuring
the claimant has the necessary forms and instructions,40 and notifying the claimant if additional
information is needed.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 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.
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).
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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
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).44 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
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
The claimant should be specific about whether the entire decision is being appealed or only part
of the decision is being appealed.47 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
Where and When to Send the NOD
In most circumstances, the NOD must be sent to the local office that made the initial
determination.49 However, if the claimant has moved, the NOD should be mailed to the local VA
office that is currently handling the claimant’s file.50 The NOD must be submitted within one year
from when the local VA office mails the initial determination.51 After one year has passed, the
decision is deemed to be final, except in rare circumstances.52
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”).
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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
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.56 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 The DRO may hold informal conferences as well as formal hearings with the claimant
regarding the claim.58 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
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
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).60 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.
54 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.
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will also send a blank VA Form 9, which must be filled out and returned to continue the appeal
process.62
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.63 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.64 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
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.66 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.67 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.68 The claimant will then
have thirty days to notify the VA office of any mistakes found in the SSOC.69
Once the VA Form 9 has been completed and submitted, the claimant has fulfilled his obligations
for filing the appeal.70 The local VA office will certify the case to the BVA after it receives the
completed VA Form 9.71
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.72 A claimant may file “a motion to advance on the
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).
63 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).
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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.74 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.75 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.76 The BVA has also noted that it is working to make
teleconference hearings more widely available and to upgrade their teleconference technology.77
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.78 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 The claimant
can be represented at a BVA hearing.80 The hearing may be documented in a transcript, which is
also added to the file for review by the Board.81
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.82 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.
75 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).
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claimant with a Supplemental Statement of the Case.83 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.84 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.85 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.86 The BVA called for this legislative change
to help avoid unnecessary remands.87 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
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).89 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.90 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
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.92 The staff attorney will function similarly to a clerk for a
judge and perform any additional research that is necessary.93 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.
84 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.
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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 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
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.96 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.97 This is sometimes referred to as “additional development.”98 Upon remand, the claim
folder will be returned to the local VA office to perform the additional work needed on the
claim.99 The local VA office, after obtaining the necessary information, will then make another
decision on the claim.100 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.101 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
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.103 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.
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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.104 A motion for
reconsideration “may be filed at any time.”105 This motion should be sent directly to the BVA and
not to the local VA office.106 If the motion is allowed by the BVA, the claimant may request an
additional hearing before the Board.107 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.108 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
Reopening the Case
The claimant may request to have the case reopened only if the claimant has obtained “new and
material” evidence relating to the claim.110 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.111 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
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).113 In order to succeed, the BVA must determine that, but for the error, the BVA would
have reached a different decision.114 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.
105 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).
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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.115 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
The claimant may file a CUE motion at any time by sending the motion directly to the BVA.117
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
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 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.120 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
The CAVC will reach its determination by reviewing the record from the BVA and the written
arguments provided by the appellant and the VA.122 Although the CAVC is authorized to hear oral
arguments, a vast majority of cases are decided without such argument.123 The CAVC is not
permitted to review de novo a determination of fact made by the BVA. 124 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.125 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).
116 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 120-
day 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).
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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.127 If the CAVC denies the appellant’s claim, the appellant may
seek further review at the United States Court of Appeals for Federal Claims.128 The VA may also
appeal a CAVC decision.129
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.130 However, after the Supreme Court decision in Bowles v. Russell,131 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.132 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
In 2001, David Henderson filed a claim with the VA for compensation based on his need for in-
home care.134 His claim was denied by the VA Regional Office and was subsequently denied by
the BVA.135 After the BVA denied his claim, Henderson appealed the decision to the CAVC.136
However, his notice of appeal was filed fifteen days after the 120-day filing deadline had
expired.137 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.138 The Court
of Appeals for Federal Claims concurred with the CAVC, noting that the 120-day deadline was
jurisdictional, and thus mandatory.139
The Supreme Court granted certiorari and oral arguments were held late in 2010.140 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 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.
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necessarily preclude the CAVC from hearing an appeal.142 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.143 However, the Court did state that the deadline is an “important procedural
rule” and remanded the case to the Federal Circuit to determine whether the appellant’s “case
falls within any exception to the rule.”144 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.145 The CAVC, prior to its decision in Henderson v.
Shinseki, already had a test for determining when equitable tolling would be permissible.
Therefore, it returned to its previous jurisprudence on the issue.146 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
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.148 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
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 Therefore, although the 120-day deadline is not
“jurisdictional,” it still precludes review from the CAVC in many circumstances.
Congress has also proposed legislation that would alter the 120-day filing period.150
142 Id. at 1206.
143 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.
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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.151 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 The Federal
Circuit can only review actions to see if they are arbitrary or capricious, unconstitutional, in
excess of statutory jurisdiction, or procedurally deficient.153 The Federal Circuit may modify,
reverse, or remand decisions by the CAVC, as appropriate.154 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.
152 38 U.S.C. §7292(d)(2).
153 38 U.S.C. §7292(d)(1).
154 38 U.S.C. §7292(e).
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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).
156 H.R. 4213, 112th Cong. (2011); S. 2045, 112th Cong. (2011).
157 S. 1060, 112th Cong. (2011).
158 Id. at §403.
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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).
160 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).
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