…Let
us strive to finish the work we are in, to bind up the nation’s
wounds; to care for him who shall have borne the battle, and for his widow,
and his orphan --
The
Law
Of
Veterans’
Benefits
1860-1914
• 3 Million Union Troops
• Reached 34% of Fed budget in 1890
– (of 384.3 Million) (2013 over a trillion)
• Bureau of Pensions (until 1930)
• Republic Patronage
• POLITICS PREVAIL
– Congress seizes power
– Courts overload and ducking
1945-1988
• Veterans Administration grows, and GROWS
and GROWS.
..
But little substantive change
Continued avoidance
of judicial review.
Notice of Disagreement
• Must be filed within one year of the letter
transmitting the agency decision
• Must be filed on a form 21-0958
• VA then must prepare a Statement of the Case
• You may request a DRO hearing during this
process
• You may submit additional evidence with the
NOD or at any time thereafter
Form 9 Notice of Appeal
• Within 60 days of receiving the Statement of
the Case, you must file a Notice of Appeal on
Form 9 if you wish to appeal the decision
• You will elect whether or not to have a hearing
before the BVA
• You will be able to submit additional evidence
and briefing to the BVA if you would like
The Veterans Judicial Review Act
of 1988
Created US Court of Veterans Appeals
Gave VA Cabinet Status
Veterans Administration becomes DVA
United States Court of
Appeals for Veterans Claims
Provides judicial review of final
decisions by the Board of Veterans'
Appeals
Board of Veterans’ Appeals
Decision
• If the appellant is not satisfied with the
BVA’s decision on any of the allowed, denied,
or dismissed issues he/she has the
following options:
– File a motion for reconsideration
– File a motion to vacate the decision
– File a motion for revision based on clear and
unmistakable error
– Appeal to the U.S. Court of Appeals for Veterans
Claims
Notice of Appeal
• An appeal must be filed with the Clerk of the
Court within 120 days of the date of the
BVA’s decision
• Necessary forms:
– Notice of Appeal (Form 1)
– $50 Filing Fee OR Declaration of Financial
Hardship (Form 4)
Notice of Docketing
• Once the NOA is received at the Court, the
Clerk will send a Notice of Docketing, which:
– Assigns a case number (different from the VA
claims file number)
– Provides instructions for both parties and
advises of upcoming deadlines
Copy of BVA Decision
• Within 30 days of the Notice of Docketing,
the Secretary of the VA must file a copy of
the BVA decision on appeal
Record Before the Agency
• The Secretary must serve the appellant with
the RBA within 60 days of the Notice of
Docketing
• The RBA includes:
– All materials contained in the claims file on the date
the Board issued the decision being appealed
– any other material from the Record before the
Secretary and the Board relevant to the issues listed in
the Board decision on appeal
– a list of any record matter that cannot be duplicated
Dispute of the RBA (optional)
• The appellant may file a motion to dispute
the RBA within 14 days (+5 mailing days) if
there are documents missing in the RBA
that are pertinent to the appeal
• Does not include new evidence
Appellant’s Brief
• If both parties agree on the content of the
RBA, the Clerk will issue a notice instructing
the appellant to file a brief within 60 days
– An Informal Brief form will be sent to pro se
appellants
Secretary’s Brief
• Must be filed within 60 days after the
appellant's brief
Appellant’s Reply Brief
(optional)
• The appellant may file a reply brief in
response to the Secretary's brief
Record of Proceedings
• Collection of materials required to decide
the appeal
• Only includes documents that are relevant
to the issues on appeal
• The Secretary must file and serve the ROP
within 14 days of the appellant's reply brief
Dispute of the ROP (optional)
• Appellant may file a motion to dispute the
ROP if pertinent documents are missing
• Must be filed within 14 days
Judge’s Decision
• Most cases are decided by 1 Judge
• Some cases may be decided by a panel of 3
Judges or en banc if:
– case presents a particularly significant legal
question with broad application to more than
one veteran
– presents a question of "first impression”
Judge’s Decision (cont.)
• Possible Decisions
– Affirm
– Remand
– Reverse
– Vacate
– Dismiss
Motion for Reconsideration
(optional)
• Appellant may file a motion for
reconsideration of the decision within 21
days
Judgment
• Entered on the docket 21 days after decision
issued (unless motion for reconsideration is
filed)
Appeals Options
• U.S. Court of Appeals for the Federal Circuit
– Appeal CAVC decision within 60 days of Judgment
• U.S. Supreme Court
– Appeal Federal Circuit decision
• Case at the CAVC will remain open throughout
appeals process and will resume once the Fed
Circuit and Supreme Court issue a decision
Mandate
• Issued 60 days after the date of the entry of
Judgment
• Confirms closing of the appeal
Equal Access to Justice Act
(EAJA)
• Representative may file an EAJA application
for attorney fees if the decision is remanded,
reversed, or vacated
• Must be filed within 30 days after Mandate
• Does not impact money awarded to the
appellant by the VA