Veterans Affairs: The Appeal Process for Veterans' Claims

Veterans Affairs: The Appeal Process for Veterans' Claims

Veterans Affairs: The Appeal Process for
Veterans’ Claims
Douglas Reid Weimer
Legislative Attorney
April 7, 2011
Congressional Research Service
7-5700
www.crs.gov
RL33704
CRS Report for Congress
P
repared for Members and Committees of Congress

Veterans Affairs: 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 range from
health care and related services to burial benefits. The veteran’s basic eligibility for these
programs and services is usually determined by the local VA office. Veterans not satisfied with the
VA’s decision(s) may wish to have them reviewed and may appeal the decision(s). The VA has
certain statutory obligations to assist the veteran in the preparation of his/her application for
benefits and any subsequent appeal(s). Among these obligations are assistance in the preparation
of the initial application; provision of various records; medical exams; and other related issues.
Certain legal and factual presumptions are established by statute that may be favorable to the
veteran’s claim. These issues are examined in Appendix A of this report.
Following the filing of the initial appeal, the local VA office will either allow or disallow the
claim. If the veteran/claimant wishes to appeal further, a written request for appeal must be filed
and various time deadlines and other requirements must be met prior to the case being considered
by the Board of Veterans’ Appeals (BVA). The appeal before the BVA may be a hearing at the
local VA office by a traveling Board member; a hearing at the BVA office in Washington, DC; or
a videoconference hearing at the local VA office. There are specific guidelines for a person
representing a veteran before the BVA. The veteran/claimant may appeal the decision of the BVA
to the Court of Appeals for Veterans Claims (CAVC), which is an independent federal court and
not part of the VA. Appeal to the CAVC involves a 120-day appeal deadline, which has been the
subject of legislation and a recent U.S. Supreme Court decision, discussed below. The decision of
the CAVC may be appealed by either the veteran/claimant or the VA to the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit), an Article III court that sits in Washington, DC, and has
exclusive jurisdiction to hear cases challenging CAVC rulings. Decisions of the Federal Circuit
may be appealed to the Supreme Court, which has final jurisdiction.
In the 111th Congress, legislation was considered to modify the current 120-day time limit for an
appeal from the BVA’s final decision to be filed with the CAVC; however, none was enacted. On
February 18, 2011, Representative Bob Filner introduced H.R. 810, which is similar to legislation
introduced in the 111th Congress. If enacted, the bill would extend the 120-day limit for the filing
of an appeal to the CAVC after a final decision of the BVA, upon a showing of “good cause” for
such time as justice may require. For purposes of this legislation, “good cause” is considered to
be the inability of a person to file within the 120-day period due to a service-connected disability.
Meanwhile, the Supreme Court recently considered the 120-day limit for appeals to the CAVC in
Henderson v. Shinseki (U.S. No. 09-1036). In its March 1, 2011, holding, the Court determined
that the 120-day rule was not jurisdictional, and therefore did not necessarily preclude
consideration of appeals following its expiration, under certain circumstances. The court did not
prescribe specific criteria for these circumstances, but noted that veterans benefits legislation is
generally interpreted as being “favorable to veterans.” Legislative and administrative action may
follow to implement the 120-day rule consistent with the holding in Henderson. This report traces
the various steps involved in the appeal process—starting with the original application for
benefits and concluding with an appeal to the Supreme Court. A chart outlining all of the steps in
the appeal process is provided. Legislation was introduced in the 111th Congress concerning the
appeal process which can generally be categorized as (1) streamlining the appeal process; and (2)
extending the 120-day application appeal deadline to the CAVC. (See Appendix B.) In addition
to H.R. 810, it is expected that other similar legislation concerning the appeal process may be
introduced in the 112th Congress. This report will be updated as warranted.
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Contents
Introduction ................................................................................................................................ 1
Benefits for Veterans ............................................................................................................. 1
Appeals from the Local VA Office Decisions......................................................................... 1
The Appeal Process..................................................................................................................... 2
Flow Chart of the Various Steps in the Appeal Process .......................................................... 2
Filing the Original Claim for Benefits at the VA.................................................................... 4
The Appeal: The First Steps .................................................................................................. 4
Time Limit ...................................................................................................................... 5
The Notice of Disagreement (NOD) ................................................................................ 5
Appeal to the Local VA Office......................................................................................... 5
The Statement of the Case............................................................................................... 5
VA Form 9 and the Substantive Appeal............................................................................ 6
Supplemental Statement of Case ..................................................................................... 6
Time Limitation .............................................................................................................. 6
Withdrawal of Issue(s) .................................................................................................... 6
Issues Related to the Appeal Process ..................................................................................... 6
Filing Extensions ............................................................................................................ 6
Representation for the Appeal ......................................................................................... 7
Attorney Representation.................................................................................................. 7
Information for the Appeal .............................................................................................. 8
Location of the VA Form 9 .............................................................................................. 8
The Board of Veterans’ Appeals (BVA) ....................................................................................... 8
Organization ......................................................................................................................... 8
The BVA’s Docket................................................................................................................. 9
The BVA Docket and Docket Number ............................................................................. 9
Waiting Time .................................................................................................................. 9
Personal Hearings ....................................................................................................................... 9
Request for a BVA Hearing ................................................................................................. 10
Scheduling the BVA Hearing............................................................................................... 10
The Ninety Day Rule .......................................................................................................... 10
The Appeal at the BVA........................................................................................................ 11
Notification of the Board’s Decision.................................................................................... 11
The Remand........................................................................................................................ 11
Additional Appeal Options .................................................................................................. 12
Notice of Appeal ........................................................................................................... 12
Motion for Reconsideration........................................................................................... 12
Reopening the Case....................................................................................................... 12
CUE Motion ................................................................................................................. 13
Death of the Appellant Before a Decision Issued ................................................................. 13
Subsequent Judicial Appeals ............................................................................................... 13
The 120-Day Filing Deadline .................................................................................................... 14
Background and Possible Issues for Congress ..................................................................... 14
Decisions of the RO, BVA, and Lower Courts ..................................................................... 14
U.S. Supreme Court—Henderson v. Shinseki....................................................................... 15

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Figures
Figure 1. Appeal Process ............................................................................................................. 3

Appendixes
Appendix A. Duties and Obligations of the VA to the Claimant/Appellant ................................. 16
Appendix B. Legislation Considered in the 111th Congress ........................................................ 21
Appendix C. Legislation Being Considered in the 112th Congress .............................................. 23

Contacts
Author Contact Information ...................................................................................................... 23

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Veterans Affairs: The Appeal Process for Veterans’ Claims

Introduction
Benefits for Veterans
Congress, through the United States Department of Veterans Affairs (VA), provides a broad
variety of benefits and services to veterans and certain members of their families.1 Among the
benefits that the VA extends to veterans are various types of health care and related services, such
as nursing homes, clinics, and medical centers; various types of financial benefits, including
disability compensation and pensions; education, vocational training, and related career
assistance; home financing; life insurance; burial benefits; and benefits for certain family
survivors.2
The veteran’s basic eligibility for these various services and programs is usually determined by
the local VA office.3 Various criteria must be met in order for the veteran to be eligible for VA
benefits, and the local VA office scrutinizes the veteran’s claim before determining eligibility.4
Appeals from the Local VA Office Decisions
Veterans not satisfied with the decisions made by the local VA office on their claims or benefits
may wish to have the decisions reviewed on appeal.5 The VA has stated that the two most
common types of appeals concern 1) the VA’s denial of benefits for a disability that the veteran
believes is service-connected; and 2) the VA’s rating a disability as less severe than the veteran
believes is warranted.6 The first issue involves disability compensation, which is a monthly cash
benefit for veterans currently impaired from past service-connected activities.7 The second issue

1 See generally Federal Benefits for Veterans and Dependents, published by the Department of Veterans Affairs (2010
edition), available online at http://www1.va.gov/opa/publications/benefits_book/federal_benefits.pdf. See CRS Report
RL33113, Veterans Affairs: Basic Eligibility for Disability Benefit Programs, by Douglas Reid Weimer. This report
deals with the fundamental requirements for disability benefit programs. See CRS Report RL33323, Veterans Affairs:
Benefits for Service-Connected Disabilities, by Douglas Reid Weimer. This report discusses various aspects of
disability compensation, a monthly cash benefit program for veterans currently impaired from past service-connected
activities.
2 For a comprehensive list of CRS-related products relating to benefits for veterans, go to http://www.crs.gov, then
click on “Social Policy,” and then click on “Benefits for Veterans.”
3 The local VA office is defined by the VA as “any local office of the Department of Veterans Affairs where claims for
VA benefits are received and determined.” This is usually a VA Regional Office or an administrative office at a VA
medical center. The legal term for such an office is the “agency of original jurisdiction.” A VA Regional Office is one
of 58 VA regional offices located throughout the United States and its territories, and it is at these offices where most
claims for VA benefits are filed and determined. Thus, all Regional Offices are considered to be “local offices,” but the
concept of “local office” may also include administrative offices located at VA medical centers. Therefore, all Regional
Offices are “local offices,” but not all “local offices” are Regional Offices. See Board of Veterans’ Appeals,
Understanding the Appeal Process, published by the Department of Veterans Affairs; VA Pamphlet 01-00-1 (January
2000) at 38-39 (cited to afterward as “Understanding”). (Apparently, this publication is no longer available online).
4 See CRS Report RL33323, Veterans Affairs: Benefits for Service-Connected Disabilities, by Douglas Reid Weimer.
5 How Do I Appeal?, published by the Board of Veterans Appeals, Department of Veterans Affairs; VA Pamphlet 1-02-
02A (April 2002) at 1 (cited to afterward as “How Do I Appeal?”). See http://www.bva.va.gov/
How_Do_I_APPEAL.asp.
6 Id.
7 See CRS Report RL33323, Veterans Affairs: Benefits for Service-Connected Disabilities, at 1.
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involves the VA’s rating of the severity of the veteran’s disability—which is directly related to the
amount of monthly disability compensation (a cash payment) the veteran receives.8 While these
two issues seem to be the most prevalent types of appeals, nearly any decision made by the local
VA office concerning benefits for veterans may be appealed.9
An appeal of the local VA office’s decision may be made to 1) the local VA office (which made
the original decision) and/or 2) the Board of Veterans’ Appeals (BVA), which is discussed below.
The findings of the BVA may be appealed to the U.S. Court of Veterans Claims. Subsequent
appeals may be made to the U.S. Court of Appeals for the Federal Circuit and ultimately to the
U.S. Supreme Court.
The Appeal Process
Flow Chart of the Various Steps in the Appeal Process
The appeal process consists of several steps. The following flow chart provides a simplified
outline of the steps that must be taken by the veteran in an appeal. Each step is discussed in detail
in the text following the chart.

8 Id. at 7-10. For instance, the local VA office may determine that the veteran is 10% disabled, while the veteran
believes that he/she is 40% disabled.
9 See How Do I Appeal?, supra note 5, at 1. For example, a veteran may appeal a denial of education benefits made by
the local VA office.
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Figure 1. Appeal Process

Source: Adapted from charts at How Do I Appeal?, supra note 5, at 2 and Understanding, supra note 3, at 32.
Note: These filing time limits apply in most cases. However, they do not apply to “simultaneously contested
claims,” when more than one person is trying to receive benefits that only one person is entitled to, such as life
insurance proceeds. See Understanding at 11.
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Filing the Original Claim for Benefits at the VA
In order to apply for VA benefits, the veteran must file a claim at the local VA office or VA
medical facility.10 A claim for benefits may also be filed online.11 The claim must specifically
state the requested benefit(s).12 Assistance to the veteran during the application process may be
provided by representatives from Veterans Service Organizations (VSOs)13 and/or by other
persons or agents.14 The VSOs have staff located at most local VA offices.
In addition to assistance that may be provided by the VSOs or other agents, the VA is obligated by
statute and regulation to provide certain assistance to the claimant during the original claim
procedure and during any subsequent appeal(s). Such assistance many involve locating and
producing records and providing medical examinations. Certain presumptions relating to medical
conditions are also mandated by statute. These obligations and presumptions are summarized in
Appendix A of this report.15
Following receipt of the veteran’s claim for benefits, the local VA office will review the claim and
make a decision about the claim(s).16 The local VA office will either allow or deny the claim.17
Where relevant, the local VA office may also rate (on a percentage basis) the veteran’s degree of
service-connected disability.18 The local VA office’s determination will be mailed to the veteran.19
If the veteran is not satisfied with the local VA office decision, the veteran may appeal.
The Appeal: The First Steps
An appeal20 is a request for a review of a local VA determination21 on a claim for benefits.22
Anyone who has filed a claim for benefits with the VA and has received a determination from a

10 The local VA office is defined by the VA as “any local office of the Department of Veterans Affairs where claims for
VA benefits are received and determined.” See discussion at note 3.
11 See How Do I Appeal?, supra note 5, at 3. File the claim at https://vabenefits.vba.va.gov/vonapp/about_vonapp.asp.
This is the Veterans ON-line APPlication (VONAPP) website. It should be noted that sometimes this website is not
functional.
12 Such benefits might relate to medical care, disability compensation, or educational benefits.
13 Such organizations are the American Legion, the Disabled American Veterans, and other veterans’ groups.
14 See How Do I Appeal?, supra note 5, at 3.
15 See discussion at Appendix A.
16 See CRS Report RL33323, Veterans Affairs: Benefits for Service-Connected Disabilities, Douglas Reid Weimer, at
1-2.
17 Id.
18 Id. at 7-10.
19 See How Do I Appeal?, supra note 5, at 3.
20 See 38 C.F.R. § 20.200. What Constitutes An Appeal. “An appeal consists of a timely filed Notice of Disagreement
in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal.”
21 See Understanding, supra note 3, at 6. Most local determinations are made by the local VA office. However, some
determinations made by VA medical facilities, such as eligibility for medical treatment, may also be appealed.
22 38 U.S.C. § 511(a) outlines the authority of the Secretary of the VA to make decisions regarding benefits for
veterans.
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local VA office is eligible to appeal a complete or a partial denial of a claim.23 The veteran may
also appeal the level of benefit granted.24
Time Limit
The veteran seeking a review of the local VA office decision (called “the appellant”) has one year
from the date on which the local VA office mails the appellant its initial determination of the
claim to appeal. After one year, the local VA office determination is considered final and cannot
be appealed unless there is proof of clear and unmistakable error on the part of the VA.25
The Notice of Disagreement (NOD)26
There is no special form needed to initiate the appeal process. The appellant need only submit a
written statement disagreeing with the local VA office’s claim determination and stating the
veteran’s wish to appeal the claim determination. This statement is called the Notice of
Disagreement (NOD).27
Appeal to the Local VA Office
The NOD is filed with the same local VA office that made the decision being appealed,28 as this is
the location of the appellant’s claims file or claims folder,29 unless the appellant has moved. After
the NOD is filed, the appellant may request that a Decision Review Officer (DRO) from the local
VA office review the claims file. The DROs provide a second review of the entire file and may
also hold a personal hearing on the claim.30
The Statement of the Case
At this point, the local VA office will either allow or not allow the claim. If the claim is
disallowed, the local VA office will prepare and send to the appellant a Statement of Case (SOC)
and a blank VA Form 9 to be used for continuation of the appeal. The SOC summarizes the
submitted evidence, the relevant laws, and regulations and provides the local VA office’s reasons
for disallowing the claim.31

23 Again, see Understanding at 6. Most local determinations are made by the local VA office. However, some
determinations made by VA medical facilities, such as eligibility for medical treatment, may also be appealed.
24 For example, a veteran may be determined to be 20% disabled, but the veteran may believe that he/she is 40%
disabled and appeal.
25 See Understanding, supra note 3, at 6-7.
26 See 38 C.F.R. § 20.201.
27 See Understanding, supra note 3, at 39.
28 38 C.F.R. § 20.300.
29 For the purpose of this report, the appellant’s records will be referred to as “claims file.”
30 See How Do I Appeal?, supra note 5, at 4.
31 See Understanding, supra note 3, at 8-9.
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VA Form 9 and the Substantive Appeal32
To continue an appeal, the appellant must fill out and return the VA Form 9—the Substantive
Appeal—to the local VA office. Form 9 is available online.33 The appellant must state the
requested benefit, any mistakes in the SOC, and indicate whether a personal hearing is
requested.34 The Form 9 becomes part of the claims folder and is the basis for adding the appeal
to the Board of Veterans Appeals docket. Specific provisions exist for withdrawing the appeal.35
Supplemental Statement of Case36
If the appellant submits new evidence or information, the local VA office will prepare a
Supplemental Statement of Case (SSOC). The SSOC is similar to the SOC and includes the
newly submitted information.37 The appellant has 60 days from the date the SSOC was mailed to
submit, in writing, any matter in dispute on the SSOC.
Time Limitation38
The local VA office must receive the VA Form 9 within 60 days from the date that the VA mailed
the SOC (or SSOC) or within one year of the date that the original decision denying the claim,
whichever date is later.39
Withdrawal of Issue(s)
If the appellant does not wish the Board of Veterans Appeals to examine an issue that is contained
in the SOC or the SSOC, the appellant may state on Form 9 that the appellant is withdrawing the
issue(s) on the appeal.40
Issues Related to the Appeal Process
Filing Extensions41
An appellant may request an extension of the 60-day filing period for filing a Substantive Appeal
or the 60-day period to respond to a Supplemental Statement of the Case.42 The appellant makes

32 38 C.F.R. § 20.202.
33 See http://www.bva.va.gov. Go to the website, then go to “Board of Veterans’ Appeals,” then go to “VA Forms”(in
the lower right hand corner), then type in VA9.
34 A personal hearing must be requested. Without such a request, the BVA will review the claims file and the VA Form
9 and make a decision without meeting or speaking with the appellant and his/her representative.
35 38 C.F.R. § 20.204.
36 38 C.F.R. § 20.302(b), (c).
37 See Understanding, supra note 3, at 40-41.
38 38 C.F.R. § 20.302.
39 Id. See How Do I Appeal?, supra note 5, at 6.
40 See Understanding, supra note 3, at 10.
41 38 C.F.R. § 20.303.
42 38 U.S.C § 5105(d)(3); 38 C.F.R. § 20.303.
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this request in writing to the local VA office handling the appeal. The appellant needs to explain
to the VA local office why extra time is needed to file.
Representation for the Appeal43
The appellant may represent him/herself at the appeal. However, the VA has reported that about
90 percent of appeals heard before the Board of Veterans Appeals (BVA) have some third-party
representation.44
There are three different categories of representatives that the appellant may engage. The first
includes representatives of the VSO or from the state or local veterans’ office. Usually, the
representatives from the VSOs and the government veterans’ offices do not charge for their
services.45 Second, the VA recognizes certain “agents” who are able to represent appellants and
who are certified by the VA.46 Third, the appellant may engage a lawyer for representation.47
The appellant must complete a VA Form 21-22 to authorize representation by a VSO or a related
entity on the appeal.48 The appellant must complete a VA Form 21-22a to authorize representation
by a recognized agent49 or a lawyer for his/her appeal.50 An appellant is limited to one
representative recognized by the BVA.51
Attorney Representation
The Veterans Benefits, Health Care, and Information Technology Act of 2006,52 enacted in the
109th Congress, modified attorney participation in the appeal process. The act also requires the
Secretary of the VA to provide additional qualifications and standards for agents and attorneys
who represent veterans before the VA, including standards that deal with (1) training and
character and (2) fee criteria and limitations. The Secretary is authorized to charge and collect
fees from the agents or attorneys to be used for administrative expenses for veterans’ benefits
programs. The following grounds for suspension of agents or attorneys are provided in the act:
presenting frivolous claims, prior suspensions, charging excessive or unreasonable fees, or failure
to comply with the Secretary’s regulations.
The legislation significantly broadened opportunities for legal representation during
administrative appeals. Previously, an attorney could not represent a veteran for a fee until the
BVA made a final decision.53 This had the effect of excluding an attorney from the process until
all of the administrative appeals had been exhausted. The act now permits an attorney to enter the

43 See in general, 38 C.F.R. § 20.600.
44 See Understanding, supra note 3, at 12.
45 See Understanding, supra note 3, at 12.
46 38 U.S.C. § 5904; 38 C.F.R. § 20.604.
47 38 C.F.R. § 20.603.
48 38 C.F.R. § 20.602. See note 33.
49 38 C.F.R. § 20.604.
50 38 C.F.R. § 20.603. See note 33.
51 See Understanding, supra note 3, at 12.
52 P.L. 109-461, Title I.
53 See Figure 1. Appeal Process at 3.
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appeal process at a much earlier date—after the veteran has received a decision on his or her
claim from the VA and decides to appeal this initial decision administratively through the filing of
a NOD.54 An attorney may now provide representation for a fee after the NOD is filed. The act
requires the Secretary to provide Congress with an evaluation of the effect of the new system of
representation not later than 42 months after the date of enactment. The Secretary is also
authorized to review fee agreements, and the Secretary may order a reduction in an agreed upon
fee if the Secretary finds the fee excessive or unreasonable. The Secretary’s decision may be
reviewed by the BVA, which is authorized to make the final review of the issue.55
Information for the Appeal
Should new evidence or medical proof supporting the appellant’s claim arise during the appeal
process, the evidence should be submitted to the VA. If the appellant’s claims file is at the local
VA office and the new evidence is sent there, the VA local office will send the appellant an SSOC
if it does not allow the claim after reviewing the new evidence. The new evidence will be added
to the claims file and considered during the appeal process.56
Location of the VA Form 9
After the Form 9 is filed, it becomes part of the claims file and serves as the basis for the appeal
to the BVA. The Form 9, as part of the claims file, will be sent by the local VA office to the BVA
and will be reviewed later by the BVA when the BVA considers the appeal and reviews the entire
claims file.
The Board of Veterans’ Appeals (BVA)
Organization57
Known as the “Gateway to VA Appeals,”58 the Board of Veterans’ Appeals (BVA) is a part of the
VA based in Washington, DC.59 The BVA reviews benefit claims appeals and issues decisions on
those appeals. The BVA is composed of “Members of the Board” who are attorneys experienced
in veterans’ law, appointed by the Secretary of Veterans Affairs and approved by the President of
the United States. Staff attorneys, who are designated as Counsel or Associate Counsel, assist
Members of the Board in preparing decisions.60 The function that they provide is similar to a law
clerk who assists a judge in his/her legal capacities.61

54 Id.
55 38 U.S.C. § 7104.
56 See Understanding, supra note 3, at 13-14.
57 For a general overview of the BVA, see the website at http://www.bva.va.gov.
58 Id.
59 38 U.S.C. § 7101(a); 38 U.S.C. § 7104.
60 See Understanding, supra note 3, at 6.
61 Id.
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The BVA’s Docket
The BVA Docket and Docket Number
The local VA office will forward the appellant’s claims file to the BVA’s docket. The law requires
that the BVA decide cases on a “first come, first served” basis.62 Each appellant’s case is added to
the docket when the VA receives the substantive appeal—VA Form 9—and the claims file from
the local VA.63
On occasion, the BVA may, on a motion by the appellant, advance the order of a claim on its
docket.64 The appellant must demonstrate compelling need, exceptional circumstances, or proof
of hardship.65 The BVA seldom grants a request for “advancement on the docket,” as the BVA
feels that most appeals involve some form of hardship and the BVA wishes to treat all appellants
fairly.66
Waiting Time
Once a case/claim has been entered on the BVA’s docket, it is uncertain how long it may take for
the BVA to reach a decision on the case. The VA has stated that it takes an average of two years
from the time a NOD is filed until a final decision is issued.67 However, the 2009 Report of the
BVA Chairman appears to indicate that the decision/processing time has been substantially
reduced.68
Personal Hearings
There are two types of personal hearings: a local VA office hearing69 and a BVA hearing.
As previously discussed,70 a local office hearing is held at the local VA office between the
appellant and a hearing officer from the local VA office staff. Such a hearing is arranged between
the appellant and the local VA office. The local VA office may find in favor of the appellant. The
appellant may subsequently appeal an adverse finding by the local office hearing through the
BVA.
The appellant may present his/her case in person to a member of the BVA. There are three types
of BVA hearings: a hearing by a Board member at a the local VA office (Regional Office), called

62 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900.
63 See Understanding, supra note 3, at 15. Each case is assigned a docket number when it is added to the list of cases.
The first two digits are the year in which the case was filed and the remaining digits indicate the order in which the case
was added to that year’s list/docket. For example, 10-00111, would indicate the 111th claim filed in 2010.
64 38 U.S.C. § 7107(a)92); 38 C.F.R. § 20.900.
65 For example, terminal illness, bankruptcy, pending eviction, and other hardships.
66 See Understanding, supra note 3, at 16.
67 Id.
68 Report of the Chairman of the Board of Veterans’ Appeals (Fiscal Year 2009), at 16.
69 This is sometimes called a Regional Office hearing, an RO hearing, or a hearing officer hearing.
70 See “Appeal to the Local VA Office” on page 6.
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a Travel Board hearing;71 a hearing at the BVA office in Washington, DC; or a videoconference
hearing at the local VA office, if it is equipped for videoconferencing. The VA does not pay the
appellant’s travel expenses.72
Request for a BVA Hearing
The typical way to request a BVA hearing is for the appellant to indicate on VA Form 9 the type
of hearing that the appellant wishes. The appellant may also write to the BVA to request a
hearing, indicating whether a hearing is requested at the local level or in Washington, DC.
Scheduling the BVA Hearing
The schedule of the hearing depends upon the type of hearing requested. The BVA has reported
that the Travel Board hearings are usually held as soon as they can be scheduled on the hearing
officer’s calendar,73 but that they may be difficult to arrange because of the schedules of the BVA
Board members and the accumulation of a sufficient number of appeals to warrant a scheduled
visit from a BVA member.74 Videoconferenced hearings are less complicated to arrange and can
be scheduled more quickly than Travel Board hearings, according to the BVA.75
Hearings that are held at the BVA offices in Washington, DC, are usually scheduled close to the
time when the BVA will consider the case. The BVA has reported that hearings are scheduled
about three months in advance.76
The Ninety Day Rule
The local VA office will notify the appellant by letter when it transfers the claims file to the BVA
in Washington, DC. The letter will inform the claimant that the claimant has ninety days from the
date of the letter or until the BVA decides the case, whichever comes first, to add additional
evidence to the file, request a hearing (if none was selected), and/or select or change
representation.77
In order for the BVA to accept any of these materials after the expiration of the ninety-day period,
the appellant must submit a motion—a written request—asking the BVA to accept the item, even
though it is late. The motion must include an explanation of why the item is late and demonstrate
why the BVA should accept the item into the claims file.

71 See note 3.
72 See Understanding, supra note 3, at 18.
73 Id. at 19.
74 Id.
75 Id.
76 Id.
77 38 C.F.R. § 20.1304.
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The Appeal at the BVA
The local VA office will forward the appellant’s file to the BVA. The appellant will be notified in
writing when the file is officially transferred and received by the BVA.78 The decision time in the
appeal process varies from case to case. After the file is received by the BVA, the appellant’s case
will then be assigned to a Board member for review. When the docket number for the appeal has
been reached, the file will be examined by a Board member and a staff attorney. They will check
the file for completeness, review all of the evidence and arguments, the transcript of the local VA
hearing, the statement of the appellant’s representative (if the appellant has a representative), and
any additional information that may be with the claims file.79 The Board member may request the
staff attorney to undertake additional research on the case and prepare recommendations for the
review of the Board member. If the appellant requested a BVA hearing, the Board member
assigned to the case will conduct the hearing before reaching a decision.
Notification of the Board’s Decision
The BVA will issue its decision in writing. The decision may contain legal documents and legal
discussions as well as medical discussions. The decision will be mailed to the appellant’s home
address.80
The decision will allow, deny, or remand the claim. If the claim is allowed or denied, the BVA’s
decision is final. A remand is not a final decision and allows further work on the claim.81
If the appeal is denied, the BVA will send a copy of the “Notice of Appellate Rights” that
describes additional actions that the appellant may choose to pursue.
The Remand
At times, the BVA may review an appeal and determine that the case is not ready for a final
decision. The BVA will send the case back to the local VA office with directions as to what should
be done. The action of returning the case to the local VA office for additional work is called a
remand. It is sometimes described as “additional development.”82
After the case has been returned to the local VA office, the office will perform the additional work
on the file. The local VA office will review the case and issue a new determination. If the local VA
office does not allow the claim, it will return the case to the BVA for a final decision. The case
keeps its original place on the BVA’s docket, so it is usually reviewed relatively soon after it is
returned to the BVA.83

78 See Understanding, supra note 3, at 21. Appellants may check the status of their files after its transfer by BVA by
telephone at 202-565-5436.
79 Id. at 22.
80 Id.
81 See How Do I Appeal?, supra note 5, at 11.
82 See Understanding, supra note 3, at 24.
83 Id.
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Certain cases are remanded because of new rulings by the U.S. Court of Appeals for Veterans
Claims or changes in the law. The local VA office will then review them within the context of the
new legislation or the court ruling.84
Additional Appeal Options
Should the appellant wish to appeal the BVA’s decision, the appellant may appeal to the United
States Court of Appeals for Veterans Claims (CAVC), an independent court and not part of the
VA.85 An appellant may also wish to pursue further motions with the BVA.
Notice of Appeal
Usually, the appellant must file the Notice of Appeal with the CAVC within 120 days from the
date the BVA’s decision is mailed. (The mailing date is stamped on the front of the BVA’s
decision.)86
If the appellant filed a motion to reconsider with the BVA within the 120-day time period and that
motion was denied, the appellant has a new 120-day period to file the Notice of Appeal with the
CAVC.87 The new 120-day period begins on the date the BVA mails the appellant a letter
notifying the appellant that it has denied the motion to reconsider.
Motion for Reconsideration
If the appellant is able to demonstrate that the BVA made an obvious error of fact or of law in its
decision, the appellant may file a written “motion to reconsider” the appeal.88 The appellant may
have the VSO representative advise him/her whether to file the motion, and the VSO
representative may also provide assistance in its preparation. The motion to reconsider is sent
directly to the BVA and not to the local VA office.
The appellant must demonstrate that the BVA made a mistake in law or in fact and that the BVA’s
decision would have been different if the mistake had not been made.89
Reopening the Case
If the appellant has “new and material” evidence relating to his/her claim, the appellant can
request that the case be reopened.90 In order to be considered “new and material,” the evidence

84 Id.
85 See the CAVC’s website: http://www.vetapp.uscourts.gov/.
86 See discussion below of current litigation concerning this issue, and also congressional consideration of an extension
of the 120-day appeal filing period.
87 See Understanding, supra note 3, at 25-26 for the appropriate addresses to file the Notice of Appeal and a copy of
the Notice of Appeal.
88 38 U.S.C. § 7103; 38 C.F.R. § 20.1000; 38 C.F.R. § 20.1001.
89 See Understanding, supra note 3, at 27.
90 38 U.S.C. § 5108; 38 U.S.C. § 7104(b); 38 C.F.R. § 3.156; 38 C.F.R. § 20.1105.
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submitted must include information related to the case that was not included in the claims folder
when the Board reviewed and decided the case.
To reopen a case, the appellant must submit the new evidence directly to the local VA office and
not to the BVA.91
CUE Motion
A BVA decision may be reversed or revised if the appellant is able to show that the decision
contained “clear and unmistakable error” (CUE).92 The written request for the BVA to review its
decision for CUE is called a motion. CUE motions are filed directly with the BVA and not with
the local VA office.
The motion for CUE review must meet various requirements. In order to succeed, the conclusion
must be reached that the BVA would have decided the case differently, but for the error. A
difference in opinion is not sufficient.93 If the motion is denied, the appellant cannot request
another CUE review. The VA has reported that not many CUE motions are successful.
The appellant may file a motion to review a BVA decision for CUE at any time. However, if the
motion for CUE is filed after filing a timely Notice of Appeal with the CAVC (120 days), the
BVA will not be able to rule on the CUE motion.94
Death of the Appellant Before a Decision Issued
The death of the appellant usually ends the appeal.95 If the appellant dies, the BVA normally
dismisses the appeal without issuing a decision. Any rights of a deceased appellant’s survivors are
not affected by this action. The survivors may file a claim at the VA regional office (RO) for any
benefits to which they may be entitled.96
Subsequent Judicial Appeals
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has exclusive jurisdiction to
hear cases involving challenges to VA decisions in an appeal of a CAVC decision and in a direct
challenge to VA regulation and VA policies of general applicability.97 A decision of the CAVC
may be appealed to the Federal Circuit by the persons who appealed to the CAVC or by the VA.
An appeal to the Federal Circuit must be filed within 60 days of the final CAVC decision. After
the Federal Circuit issues a final decision, either the claimant or the VA may petition the U.S.

91 See Understanding, supra note 3, at 27.
92 38 U.S.C. § 7111; 38 C.F.R. § 20, subpart O.
93 Id.
94 See Understanding, supra note 3, at 28.
95 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.
96 See Understanding, supra note 3, at 29.
97 38 U.S.C. § 7292. See CRS Report RS22561, Veterans Affairs: The U.S. Court of Appeals for Veterans Claims—
Judicial Review of VA Decision Making, by Douglas Reid Weimer.
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Supreme Court for certiorari (to hear the case) within ninety days of the Federal Circuit’s final
action.98 The Supreme Court is the court of last resort and the Supreme Court’s decision is final.99
The 120-Day Filing Deadline
Background and Possible Issues for Congress
An area of considerable interest has been the 120-day statute of limitations for the veteran to
appeal an adverse decision of the BVA to the CAVC.100 Interest has focused on the possibility of
expanding the filing deadline, under certain circumstances—either administratively or
legislatively. This requirement has been interpreted as being absolute, and generally not subject to
extension.
Over the years, questions have arisen concerning the situation where a veteran’s service-
connected disability may prevent the veteran from meeting the 120-day filing deadline to the
CAVC. For example, a veteran may be mentally disabled through post-traumatic stress. Should
such cases be given special exception(s) or treatment?
Decisions of the RO, BVA, and Lower Courts
Such a case has arisen and has been appealed to the U.S. Supreme Court—Henderson v.
Shinseki.101 In this case, the veteran, David Henderson, had served on active military duty from
1950 to 1952. He was discharged in 1952 after being diagnosed with paranoid schizophrenia; he
established a service connection and received and currently has a 100% disability rating. In 2001,
Henderson filed a claim for monthly compensation based on his need for in-home care with the
VA Regional Office (RO). The RO denied the claim and Henderson appealed to the BVA. The
BVA denied his claim. Henderson filed a notice of appeal with the CAVC 15 days after the
expiration of the 120-day appeal period (38 U.S.C. § 7266(a)).
The CAVC ruling, in a 2-1 decision, denied Henderson’s claim, and determined that Congress had
“specifically authorized” it to conduct “independent judicial appellate review” of the Board, and
that well-settled law established that its cases were “civil actions.”102 Henderson’s appeal was
dismissed by the CAVC for lack of jurisdiction.103
Henderson appealed the CAVC’s ruling to the U.S. Court of Appeals for the Federal Circuit
(appeals court), in a case captioned Henderson v. Shinseki.104 Examining the factual and legal

98 38 U.S.C. § 7292(c).
99 In recent testimony, the Chairman of the BVA outlined in detail the statistical figures of the various appeals from the
BVA to the CAVC. Examining the Appellate Processes and Their Impact on Veterans: Hearing Before the H. Sub. On
Disability Assistance and Memorial Affairs, 111th Cong., 1st Sess.18-19 (2009)(statement of Hon. James P. Terry,
Chairman, Board of Veterans’ Appeals, U.S. Department of Veterans Appeals.
100 See discussion on p. 12.
101 U.S. No. 09-1036 (Argued Dec. 6, 2010).
102 Henderson, 22 Vet. App. at 220.
103 Id. at 220-21.
104 589 F.3d 1201 (Fed. Cir. 2009).
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circumstances, the appeals court determined that the120-period was a “time of review provision”
in a civil case, rather than a statute of limitations. As such, the statute was not subject to equitable
tolling; it was mandatory and jurisdictional. In its opinion, the appeals court held that if
“Congress determined that the 120-day period for appealing to the Veterans Court from a decision
of the Board should be subject to equitable tolling, it may amend § 7266(a) to compel a result
different from the one we reach today.”105 The appeals court upheld the CAVC’s finding of lack of
jurisdiction, and dismissed Henderson’s appeal.
U.S. Supreme Court—Henderson v. Shinseki106
Henderson appealed the decision of the appeals court to the U.S. Supreme Court (Court). Oral
argument was held before the Court on December 6, 2010. The central issue was whether a
veteran may still file an appeal to the CAVC after an unfavorable BVA decision, even if the
veteran fails to file within the statutorily mandated 120-day filing period, due to circumstances
which may make it impossible for the veteran to meet the deadline.
On March 1, 2011, the Court handed down its decision which held that the 120-day rule was not
jurisdictional, and did not necessarily prevent consideration of appeals after its expiration, under
certain circumstances.107 In a narrow holding, the Court did not prescribe or provide specific
criteria for those circumstances. However, the Court noted that veterans benefits legislation
generally is interpreted as being “favorable to veterans.”
Administrative action may follow to implement the 120-day appeals deadline consistently with
the holding in Henderson. As discussed below, in Appendix C, legislation is currently pending to
provide guidance for flexible application of the 120-day rule, under certain circumstances.

105 Id. at 1220.
106 U.S. No. 09-1036 (Argued Dec. 6, 2010).
107 Id. 562 U.S. ___ (2011).
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Appendix A. Duties and Obligations of the VA to
the Claimant/Appellant
Duties and Obligations of the VA to the Claimant/Appellant108
The VA109 has various legal obligations to a claimant/appellant relating to the completeness of the
application for benefits (or a subsequent appeal), the provision of medical and service records,
and other issues related to the application/appeals process.
Application and Notice of Incomplete Application
The VA is required to provide to any person claiming or applying for any benefit, the
“instructions and forms necessary to apply for that benefit.”110 These materials are to be provided
“free of all expense” to the claimant.111
If the claimant’s application for a VA benefit is incomplete, the VA is required to notify the
claimant of the information that is necessary to complete the application.112
Required Information and Evidence; and Time Limitation113
After the VA receives a complete or a nearly complete application for benefits, the VA is required
to notify the claimant of any information or medical or lay evidence that is needed to substantiate
the claim.114 As part of this notification requirement, the VA is required to indicate which
information and evidence is to be provided by the claimant and which information the VA will
attempt to obtain on the claimant’s behalf to substantiate and complete the claim.
The claimant is required to submit the above-mentioned evidence to substantiate the claim within
one year of the date of the VA’s notification. If no further evidence is obtained, no benefits will be
paid or furnished on this claim.115

108 See CRS Report RL33323, Veterans Affairs: Benefits for Service-Connected Disabilities, by Douglas Reid Weimer.
109 The statutory language provides that “the Secretary” is required to provide various assistance to the claimant. For
the purposes of this summary and for consistency, the term “VA” is used instead.
110 38 U.S.C. § 5102(a); 38 C.F.R. § 3.150(a).
111 38 U.S.C. § 5102(a).
112 38 U.S.C. § 5102(b); 38 C.F.R. § 3.159(b)(2).
113 These provisions are not applicable for any application or claim for government insurance benefits. 38 U.S.C. §
5103(b)(2).
114 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).
115 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1).
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Duty to Assist Claimants: Records
The VA is required to make “reasonable efforts” to assist a claimant in obtaining evidence
necessary to substantiate the claim for benefits.116 However, certain exceptions exist to this
requirement. The VA is not required to provide assistance to the claimant if “no reasonable
possibility” exists that such assistance would aid in substantiating the claim.117 The VA may defer
providing assistance pending the claimant’s submission of essential information that is missing
from the claimant’s application.118
Assistance in Obtaining Records
The VA is required to make “reasonable efforts” to obtain relevant records (including private
records) that the claimant adequately identifies to the VA and authorizes the VA to obtain.119
Federal regulations outline the procedures for obtaining records not in the custody of a federal
department or agency120 and for obtaining records that are in the custody of a federal department
or agency.121 If, after making reasonable efforts, the VA is unable to locate the records, the VA
will notify the claimant that it is unable to obtain the records pursuant to this claim.122 The
notification must identify the records being sought, explain the efforts made to obtain the records,
and describe any further action to be taken by the VA regarding this claim.123 The VA’s efforts to
obtain records from the federal department or agency must continue until the records are
obtained, unless it is reasonably certain that such records do not exist or that further efforts to
obtain the records would be futile.124
Records for Compensation Claims
If the case involves a claim for disability compensation, additional assistance in obtaining records
is required to be provided.125 Assistance is to be provided in locating the claimant’s service
medical records and other relevant records relating to the claimant’s active military, naval, or air
service that are held or maintained by a governmental entity;126 records of relevant medical
treatment or examination at VA health-care facilities;127 and any other relevant records held by
any federal department or agency that the claimant identifies and authorizes the VA to obtain.128

116 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c)(1).
117 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.160(d).
118 38 U.S.C. § 5103A(a)(3).
119 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.160(c).
120 38 C.F.R. § 3.159A(c)(1).
121 38 C.F.R. § 3.159A(c)(2).
122 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.160(e).
123 Id.
124 38 U.S.C. § 5103A(b)(3).
125 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(3).
126 38 U.S.C. § 5103A(c)(1).
127 38 U.S.C. § 5103A(c)(2).
128 38 U.S.C. § 5103A(c)(3).
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Medical Examinations for Compensation Claims
If the case involves a claim for disability compensation, the VA is required to provide a medical
examination or obtain a medical opinion when such an examination or opinion is necessary to
make a decision on the claim.129 The VA is required to treat an examination or opinion as
necessary if the evidence on the record, taking into consideration all information and lay or
medical evidence 1) contains competent evidence that the claimant has a current disability or
persistent or recurrent symptoms of disability130 or 2) indicates that the disability or symptoms
may be associated with the claimant’s active military, naval, or air service;131 but the record does
not contain sufficient medical evidence for the VA to make a decision on the claim.132
Other Assistance not Precluded
The statute is not to be construed as precluding the VA from providing such other assistance to a
claimant in substantiating a claim as the VA considers appropriate.133
Decisions and Notices of Decisions
When the VA makes a decision affecting the provision of benefits to a claimant, the VA is
required, on a timely basis, to provide the claimant (and the claimant’s representative) notice of
the decision.134 The notice must include an explanation of the procedure for obtaining a review of
the decision.135 If the VA denies a benefit, the notice is required to include a statement of the
reason for the decision and a summary of the evidence considered by the VA.136
VA’s Obligation to Assist in the Development of Claims
Federal regulations require the VA to assist the claimant “in developing the facts pertinent to the
claim” and to render a decision that grants every benefit that can be supported in law while
protecting the interests of the government.137 Therefore, the VA has the duty to consider all legal
theories upon which the claim could be granted, regardless of whether the claimant argues or
focuses on every possible legal theory.

129 38 U.S.C. § 5103A(c)(4); 38 C.F.R. § 3.159(c)(4).
130 38 U.S.C. § 5103A(d)(2)(A).
131 38 U.S.C. § 5103A(d)(2)(B).
132 38 U.S.C. § 5103A(d)(2)(C).
133 38 U.S.C. § 5103A(g).
134 38 U.S.C. § 5104(a); 38 C.F.R. § 3.103(b).
135 Id.
136 38 U.S.C. § 5104(b).
137 38 C.F.R. § 3.103(a).
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Disallowed Claims
The statute specifically provides that the VA is not required to reopen a claim that has been
disallowed except when new and material evidence is presented or secured.138
Reopening Disallowed Claims
If any new or material evidence is presented or secured relating to a claim that has been
disallowed, the VA is required to reopen the claim and review the former disposition of the
claim.139
Revision of Decisions on Grounds of Clear and Unmistakable Error
A VA decision is subject to revision on the grounds of clear and unmistakable error, as previously
discussed.140 A review to determine whether a clear and unmistakable error exists in a case may
be initiated by the VA or upon the request of the claimant.141 A request for a revision of a VA
decision based on clear and unmistakable error may be made at any time after the decision is
made.142 Such a request for a revision shall be submitted to the VA and shall be decided in the
same manner as any other claim.143 If there is evidence to establish the error, the prior decision is
reversed or revised.144 For the purposes of authorizing benefits, a rating or other adjudicative
decision that constitutes a reversal or revision of a prior decision on the grounds of clear and
unmistakable error, is treated as if the decision had been made on the date of the prior decision.145
Benefit of the Doubt Standard
The VA is required to consider all information and the legal and medical evidence of record in a
case before it with respect to benefits under the laws administered by the VA.146 When there is an
approximate balance of positive and negative evidence regarding any issue material to the
determination, the VA “shall give the benefit of the doubt to the claimant.”147 Regulations provide
that when reasonable doubt arises, such doubt will be resolved in favor of the claimant.148 For
instance, the submitted medical evidence generally needs to show that it is as likely as not that
there is a connection between the in-service injury, occurrence, or illness and the current
disability. Thus, the VA can deny the claim only if the preponderance of the evidence is against
the claim.

138 38 U.S.C. § 5103A(f).
139 38 U.S.C. § 5108.
140 38 U.S.C. § 5109A(a). See discussion at 12.
141 38 U.S.C. § 5109A(c).
142 38 U.S.C. § 5109A(d).
143 38 U.S.C. § 5109A(e).
144 38 U.S.C. § 5109(A)(a). See discussion at 12.
145 39 U.S.C. § 5109(A)(b).
146 38 U.S.C. § 5107(b).
147 Id. See 38 C.F.R. § 3.102.
148 38 C.F.R. § 3.102.
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Certain Presumptions
In its analysis of certain claims, the VA is required by statute and/or regulation to make certain
presumptions.
Presumption of Medical Soundness
In evaluating a veteran’s claim, the VA generally presumes that the veteran entered the service in
sound medical condition.149 This may assist the veteran in proving a claim by making it difficult
for the VA to claim that the condition or disease existed prior to service. However, if the medical
impairment was noted at the time of entry into service, the veteran may have to prove that the
condition was exacerbated in-service. If the VA is able to prove by “clear and unmistakable
evidence” that the disease or injury was in existence prior to service and that it was not worsened
during service, the veteran’s claim will be denied.
Special Rules for Certain In-Service Occurrences
Special rules exist under which the VA is required to consider a service-connected problem by
presumption. For example, certain diseases associated with exposure to Agent Orange will be
presumed to be service-related in the case of Vietnam veterans.150
A similar regulation holds that veterans who were held prisoners of war, or who served in combat,
can be presumed to have suffered traumatic, stressful events during their military service.151
Similarly, combat veterans have special rules applicable to them in proving an in-service injury or
other incident.152 Usually, if a combat veteran states that he/she suffered a disease, injury, or other
event during the combat, the VA will usually accept that statement as fact. This is typically the
case even if there are no service records to substantiate the claim.

149 38 U.S.C. § 1111.
150 38 C.F.R. § 3.307(a)(6)(iii).
151 38 C.F.R. § 3.304(f).
152 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d),(f).
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Appendix B. Legislation Considered in the 111th
Congress
The 111th Congress considered a number of bills which, if enacted, would have impacted the
appeals process. It is likely that since none of the measures was enacted into law, similar
legislative proposals may be introduced in the 112th Congress. Therefore, the following discussion
provides a brief summary of the measures introduced in the 111th Congress. Broadly, the bills can
be grouped into two categories: streamlining the appeals process and extension of the 120-day
appeals filing period to the CAVC.
Streamlining the Appeals Process
The proposed Veterans Appeals Improvement and Modernization Act of 2009 provided that if a
veteran claimant submitted evidence in support of a case for which a substantive appeal had been
filed to the BVA, such evidence could be submitted directly to the BVA and not to a regional
office of the VA, unless the claimant requested that the evidence first be reviewed by the regional
office.153
Another legislative scheme, the proposed Veterans’ Disability Claims Efficiency Act of 2010,
would have allowed the Secretary of the VA, in the case of a disability claim with multiple
conditions, to assign an interim disability rating for the condition(s) that could be assigned
without further evidentiary development and to continue development of the remaining
condition(s). The bill would have required an interim disability rating to remain in effect unless
the Secretary later assigned an increased rating for such condition. It would have prohibited the
continuation of such a rating if the rating was based on fraud or the condition improved.154
The Senate considered the Claims Processing Improvement Act of 2010.155 If enacted, the
measure would have provided that the Secretary of the VA, in the case of the veteran’s disability
claim with multiple conditions, could assign a disability rating for the condition(s) that could be
assigned without further evidentiary development, and to continue development of the remaining
condition(s). The bill would have required the Secretary to continue development of any
condition for which a rating has been assigned and to reassess such rating, if the Secretary
determines that further development could result in the assignment of a higher rating. The
measure contained other provisions to accelerate and to streamline the appeal process.
Extension of the 120-Day Limit to File an Appeal to the CAVC
The House considered several measures to expand the 120-day filing limit for appeals to the
CAVC, under certain circumstances. If enacted, the Fair Access to Veterans Benefits Act of 2010
would have extended the 120-day appeal time upon a showing of good cause for such an
extension.156 A similar measure, the Fair Access to Veterans Benefits Act of 2010, would have

153 H.R. 4121, 111th Cong., 1st Sess. (2009).
154 H.R. 5928, 111th Cong., 2d Sess. (2010).
155 S. 3517, 111th Cong., 2d Sess. (2010).
156 H.R. 5045, 111th Cong., 2d Sess. (2010).
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allowed an extension in cases of good cause.157 The bill specified that good cause could be
considered the inability of a person to file within the 120-day period due to a service-connected
disability.
A provision of the proposed Veterans Benefits and Economic Welfare Improvement Act of 2010
would have extended the appeal time limit, upon a show of good cause. The bill would have
allowed appeals retroactively to BVA decisions issued on or after July 24, 2008.158
The Senate also considered legislative measures to extend the filing limit. The proposed Fair
Access to Veterans Benefits Act of 2010 would have permitted an extension of the filing deadline
upon the showing of good cause.159 The bill also contained a retroactive provision applicable to
BVA decisions issued on or after July 24, 2008.
Another bill considered by the Senate—S. 3348—considered the situation where appeal
documents have been misfiled with the BVA (rather than the CAVC), within 120 days of such
decisions, and how such misfiled documents should be treated.160

157 H.R. 5064, 111th Cong., 2d Sess. (2010).
158 H.R. 6132, 111th Cong., 2d Sess. (2010).
159 S. 3192, 111th Cong., 2d Sess. (2010).
160 S. 3348, 111th Cong., 2d Sess. (2010).
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Appendix C. Legislation Being Considered in the
112th Congress
On February 18, 2001, Representative Bob Filner introduced H.R. 810, the Fair Access to
Veterans Benefits Act of 2011.161 The bill mirrors provisions of bills introduced in the 111th
Congress. If enacted, the bill would extend the 120-day limit for the filing of an appeal to the
CAVC after a final decision of the BVA, upon a showing of “good cause” for such time as justice
may require. For the purposes of this legislation, “good cause” is considered the inability of a
person to file within the 120-day period due to a service-connected disability.
To date, bills have not been introduced to streamline the appeals process in the 112th Congress.
However, it is anticipated that such legislation may be reintroduced.

Author Contact Information

Douglas Reid Weimer

Legislative Attorney
dweimer@crs.loc.gov, 7-7574

161 H.R. 810, 112th Cong., 1st Sess. (2011).
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