The Board of Veterans’ Appeals: A Brief Introduction

The Board of Veterans’ Appeals: A Brief Introduction

June 4, 2024
The Board of Veterans’ Appeals: A Brief Introduction
The Board of Veterans’ Appeals (BVA or Board) hears
at the BVA, from 92 at the end of FY2018 to 125 at the end
appeals of claimants dissatisfied with the initial decision on
of FY2022. The BVA can also call upon “acting
a claim for benefits or reimbursement filed with the
members”—typically BVA attorneys—to hear cases for a
Department of Veterans Affairs (VA). The BVA provides
limited time each year.
the highest level of appellate review within VA. This In
Focus describes the BVA’s creation, jurisdiction,
There is no term limit for VLJs, and they may continue to
adjudicators, and appellate procedures.
serve as long as they meet performance standards. Federal
law requires a performance review panel to evaluate VLJ
Although the BVA is still closing out the remaining appeals
job performance at least once every three years. If a VLJ
under VA’s so-called “legacy” appeal system, this
meets the performance standards, they are “recertified” as a
document will focus on the BVA’s appeal process under the
VLJ. If a VLJ fails to meet the performance standards, they
Veterans Appeals Improvement and Modernization Act of
may receive a “conditional recertification,” subject to an
2017 (AMA), which went into full effect in February 2019.
additional performance review within one year, or they may
be “noncertified” and removed from the Board. Outside of
Organization and Composition
the performance evaluation program, a VLJ may only be
The BVA is a distinct entity located within VA. By statute,
removed for good cause.
the BVA is led by the BVA Chairman, appointed by the
President with the Senate’s advice and consent, who serves
Appealing a VA Decision
a six-year term; a Vice-Chairman, appointed by the VA
In 2017, Congress enacted the AMA in an effort to
Secretary with the approval of the President; and “such
“expedite VA’s appeals process while protecting veterans’
number of members as may be found necessary” to meet
due process rights.” H. REP. NO. 115-135, at 2 (2017). Any
the BVA’s mission. Members of the Board—also known as
appeal filed after February 19, 2019, is subject to AMA
Veterans Law Judges (VLJs)—are the adjudicators who
procedures. For appeals filed before that date, the claimant
make decisions on appeals to the BVA. The statutes
can continue with the pre-AMA legacy appeal process or
governing BVA’s composition, jurisdiction, and procedures
move to the new AMA process. A discussion of the legacy
are codified at 38 U.S.C. §§ 7101–7113, and VA’s
appeals system is outside the scope of this In Focus.
implementing regulations are codified in part 20 of Title
38 of the Code of Federal Regulations.
If a claimant disagrees with an initial decision of a VA
agency of original jurisdiction (AOJ) (e.g., a regional
Jurisdiction
office, medical center, or other VA entity) on a claim for
The BVA is tasked to “conduct hearings and consider and
benefits or reimbursement, the claimant may appeal it. The
dispose of appeals properly before the Board in a timely
AMA provides three avenues for further review: (1)
manner.” It has jurisdiction to review “all questions of law
requesting higher-level review from a more experienced
and fact necessary to a decision by the Secretary of [VA]
adjudicator within the AOJ; (2) filing a supplemental claim
under a law that affects the provision of benefits by the
with new evidence at the AOJ; or (3) appealing to the BVA.
Secretary to veterans or their dependents or survivors.” 38
C.F.R. § 104. Thus, the BVA decides appeals on a wide
The AMA provides that a claimant may seek an unlimited
range of issues, from VA educational benefits to eligibility
number of reviews and, as long as each subsequent appeal
for outpatient treatment. Title 38, Section 20.104 of the
is filed within one year of the most recent decision, keep the
Code of Federal Regulations provides a non-exhaustive list
original claim’s effective date. Therefore, requesting
of potential issues that may come before the BVA. A final
higher-level review or filing a supplemental claim does not
BVA decision is considered the final decision of the VA
preclude a claimant from seeking BVA review of the
Secretary on the issue.
resulting VA decision.
Veterans Law Judges
To elect BVA review, a claimant must file a notice of
VLJs are the adjudicators that decide appeals before the
disagreement (NOD) using VA Form 10182 with the BVA
BVA. They are appointed by the VA Secretary on the BVA
within one year of the AOJ’s decision. The Board may
Chairman’s recommendation and approved by the
provide an extension of the one-year deadline if the
President. A VLJ is required by statute to be a lawyer in
claimant submits a written request showing good cause.
good standing with the bar of any state and have a salary
equivalent to that of an Administrative Law Judge.
BVA Proceedings
When electing BVA review, a claimant must select one of
The number of VLJs on the Board has increased in recent
three review options available at the Board: (1) the direct
years in an effort to address the backlog of pending appeals
review docket, (2) the new evidence docket, or (3) the
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The Board of Veterans’ Appeals: A Brief Introduction
hearing docket. These options are discussed further below.
goal of completing review of claims on this docket within
If desired, a claimant may select different dockets for each
730 days; as of September 2023, the BVA concludes these
separate issue in a decision subject to appeal.
appeals, on average, in 927 days.
Once the Board receives a completed NOD, it assigns the
BVA Decisions
appeal a docket number. The BVA is statutorily obligated
When review is complete, the BVA will grant, deny, or
to hear appeals from each docket in the order in which they
remand the claim to the AOJ for further development. The
are received. However, an appeal may be advanced on the
BVA’s decision must include a written explanation of the
docket if there is sufficient cause, such as when the
Board’s findings and conclusions on all issues of fact and
claimant is suffering severe financial hardship, has a severe
law presented in the claim. If the claimant disagrees with
illness, or has reached an advanced aged (75 years or older).
the BVA’s decision, the claimant may continue their claim
within VA by filing a supplemental claim with new
Claimants may elect to be represented before the BVA by
evidence or seek judicial review of the BVA decision.
an attorney, a claims agent, or a representative of a
recognized veterans’ service organization (VSO). The
Judicial Review of BVA Decisions
representative must be accredited by VA to represent a
The Court of Appeals for Veterans Claims (CAVC) is a
claimant. The proceedings are non-adversarial—that is,
federal Article I court that has exclusive jurisdiction to
there is no party that argues against the claimant.
review final BVA decisions. The CAVC reviews BVA
legal conclusions de novo and reviews BVA factual
VA’s “duty to assist” claimants in developing their claim
findings for clear error. Only claimants may appeal a
no longer applies during an appeal to the BVA, but the
decision of the BVA to the CAVC—VA cannot appeal.
BVA can remand the case if the AOJ failed to properly
assist the claimant with the development of the initial claim.
CAVC decisions can be appealed to the U.S. Court of
Appeals for the Federal Circuit. Any party, including the
In all of these dockets, the BVA generally will review the
VA, may appeal a CAVC decision, but the scope of review
record de novo, meaning the assigned VLJ will look at the
is limited to legal questions. The Federal Circuit may not
claim anew and not accord any weight to the AOJ’s
review factual findings or law as applied to facts unless the
conclusions. There is one exception to the BVA’s de novo
issue involves a constitutional question. Federal Circuit
review: the BVA is bound by all AOJ findings that are
decisions, in turn, are subject to review by the Supreme
favorable to the claimant unless a finding is the result of a
Court.
clear and unmistakable error.
Cases Remanded to the BVA
Direct Review Docket
If the CAVC remands a case to the BVA, the BVA must
Under direct review, the VLJ reviews the decision based
treat the case expeditiously. The case is placed on the BVA
solely on the record evidence that existed when the AOJ
docket from which it originated. Therefore, if a claimant
made the initial determination. There is no opportunity to
elected for direct review at the BVA, the remanded case
submit additional evidence or have a hearing with the VLJ.
will be put on the direct review docket, and the claimant
The BVA has a stated goal of completing reviews of claims
will not be permitted to submit additional evidence for the
on this docket within one year; as of September 2023, the
BVA’s consideration on remand.
BVA concludes these appeals, on average, in 314 days.
Issues for Congress
New Evidence Docket
BVA’s caseload and pending appeals backlog is a perennial
If the claimant elects the new evidence docket, the claimant
issue for Congress. In FY2022, the BVA rendered 95,294
may submit additional supporting evidence with the NOD
decisions and received 107,274 new cases. At the close of
or within 90 days after submitting the NOD. There is no
FY2022, there were 209,535 BVA appeals pending. When
opportunity for a hearing with the VLJ on this docket. The
considering new legislation that would impose additional
VLJ will review the newly submitted evidence along with
procedural requirements on the BVA, Congress may wish
the evidence on which the original AOJ decision was based.
to weigh the impact those additional requirements may have
The BVA has a stated goal of completing review of claims
on the BVA’s ability to efficiently conclude appeals
on this docket within 550 days; as of September 2023, the
presented to it.
BVA concludes these appeals, on average, in 695 days.
Hearing Docket
In recent Congresses, legislators have introduced bills that
The hearing docket permits a claimant to schedule a hearing
would, among other things, create internship and
with a VLJ. Claimants can elect to attend the hearing (1) in
recruitment programs to improve the BVA’s ability to
person at the BVA’s office in Washington, DC; (2) virtually
employ qualified attorneys, require VA’s Inspector General
from a VA facility; or (3) virtually from a personal internet-
to report on the appeals backlog, require the BVA to
connected device. Hearings are informal, and the claimant
include additional information in its decision notices, and
or the claimant’s representative can provide testimony and
authorize the BVA to aggregate appeals involving
argument. The claimant can submit additional evidence at
substantially similar questions of law or fact.
the hearing and within 90 days following the hearing.
Daniel T. Shedd, Legislative Attorney
The VLJ will review the record evidence that was before
IF12680
the AOJ, the testimony and arguments from the hearing,
and any added evidence submitted. The BVA has a stated
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The Board of Veterans’ Appeals: A Brief Introduction

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