Katrina J. Eagle, Attorney at Law 
http://www.veteranslawoffice.net 

 
Overview of the VA Appellate Process 

The VA Regional Office ("VARO") is only the first of several levels within the VA and the federal court system that have authority to review a veteran's claim for benefits.  A claim denied by the VARO can be appealed to the Board of Veterans' Appeals (the “Board”). A claimant can appeal an unsatisfactory result from the Board to the U.S. Court of Appeals for Veterans Claims (the “Veterans Court”). Either the claimant or the VA can appeal a Veterans Court decision to the U.S. Court of Appeals for the Federal Circuit.  Finally, either the claimant or the Secretary can appeal a decision of the Federal Circuit to the United States Supreme Court. The Department of Veterans Affairs provides a simple overview pamphlet for you here.

While the appeals process can appear complicated and lengthy at first, remember the alternative to the process is allowing the VA to have the last word on a claim. Actually, this was how the process worked until 1988, when the U.S. Court of Appeals for Veterans Claims was created. Before 1988, the furthest a claimant could appeal an adverse decision was to the Board (the highest adjudicative body of the VA).  Whatever the Board said, that was it.  And, because the Board had the last word, veterans’ advocates often say that, until 1988, the VA operated in “splendid isolation.” So, although the current process is not perfect and can take a long time to work, at least veterans have an opportunity to go to federal court if the merits of a claim support such an effort. 

So, the VA has sent you a notice letter and rating decision informing you that your claim(s) has been denied.  The notice letter includes information regarding your options for appealing the decision.  You should first read all this information very carefully because if you do not follow the instructions and fail to meet the time limits, you will lose your right to appeal.  In addition, by failing to meet deadlines and/or time limits, you could lose years’ worth of VA compensation. 

In general, a claimant has ONE YEAR from the date of the notice letter which accompanied the adverse rating decision (NOT the date of the rating decision) to notify VA of an intent to appeal.  To start the appeals process, a claimant must file a written document called a "Notice of Disagreement" with the VARO that sent the decision.  The requirements for a Notice of Disagreement (known as a "NOD" in VA-speak) are straightforward but must be complied with to avoid losing the opportunity to appeal.   

An NOD must be (1) in writing, (2) identify the rating decision by date, (3) express a disagreement with the specific issue(s) denied in the rating decision and (4) indicate a desire to appeal the decision.  Nothing else is required and saying anything more can actually increase the chances of creating a problem.  The NOD should be dated and signed by the claimant and mailed to VA by certified mail, return receipt requested, with a copy kept as the first document in a new "appeals" file. 

VA will acknowledge receipt of the NOD by letter.  In the letter will be further instructions and a description of options for proceeding.  

One of the next decisions to be made is whether to ask for a Decision Review Officer ("DRO") review of the adverse rating decision or continue directly to the Board of Veterans’ Appeals.  A DRO is a senior VA rating specialist who should have more experience in rating claims.  You can also request a hearing or an informal conference with the DRO before the DRO makes a new decision.  The advantage of a DRO decision is that because the claim remains at the VARO that originally decided it, a DRO decision is usually made much quicker than a Board decision.  However, if the DRO does not change the decision, a claimant still has the opportunity to go to the Board, but has delayed Board review while waiting for the DRO.  Deciding whether to select a DRO review or not is not an exact science, but DROs generally are better at changing decisions containing factual errors and not legal issues. 

If no DRO review is selected or if the DRO review does not produce an acceptable result, the DRO will issue a Statement of the Case (“SOC”), which basically reiterates the reasons for the initial denial but also provides VA laws and regulations relevant to the veteran’s claim(s). The VARO will also send the claimant a VA Form 9 along with the SOC. This form must be completed and returned to VARO within the time specified, which is usually SIXTY DAYS from the date of the SOC.  If it is not, the decision becomes final and the appeal is over.  By filing the VA form 9, this notifies the VARO of the veteran’s intent to continue the appeal to the Board of Veterans’ Appeals.  Once the VARO processes the VA form 9, it will (eventually) forward the veteran’s VA claims file folder to the Board for its review and reconsideration of the veteran’s issues on appeal.

The Board of Veterans’ Appeals is the highest adjudicative body of the VA.  It’s located in Washington, DC.  The Board currently is comprised of four decision teams, divided along geographical lines, and consists of 56 Board Members and 240 staff counsel.  The Board can consider new evidence that was not considered by the VARO, but only if the veteran waives consideration of the new evidence by the VARO. In addition, the Board can seek its own medical opinions in cases involving complex medical issues. 

Once a claim arrives at the Board of Veterans' Appeals, the Board will send the claimant a "90-day letter" requesting any additional evidence the claimant may have.  As the name suggests, a claimant has 90-days to respond to this request or the Board will proceed on the record without any additional evidence.  This 90-day limitation has lost most of its relevance as Board decisions now take more than two years. But it is still a limit that claimants must observe to submit additional evidence on appeal. 

A claimant also has the opportunity to request a hearing with a Board member, either in person or by videoconference.  Some time after the hearing or when the file comes up for review without a hearing, the Board will issue a written decision.  The Board can grant the entire claim, remand part of the claims to the VARO for further development, and/or deny entire claims.  If you appealed more than one issue to the Board, then the Board’s decision can (and often does) consist of all three types of decisions (e.g., grant, remand, or deny).  

If a claimant is not satisfied with any denial made by the Board, he or she can appeal that denial to the U.S. Court of Appeals for Veterans Claims.  It is important for claimants to understand that the Veterans Court is just that, a court.  The Veterans Court is NOT part of the VA.  Thus, the rules change at this point so that whatever "duty to assist" existed earlier in the process, actions before the Veterans Court are strictly adversarial.  An unrepresented claimant is on his or her own in presenting a legal case against the VA Office of General Counsel.  Note, however, that the important benefit of a successful appeal to the Veterans Court is for your case to go back to the VA on remand, all the while, preserving the date you first filed your claim with the VA (AKA the effective date), which can translate into a large retro-benefit awarded to you when the VA eventually grants the claim you’ve been appealing all these years.

It is absolutely critical to file a Notice of Appeal with the Court within 120 DAYS of the date stamped on the Board decision.  The Notice needs to be filed with the Court, NOT the Board, NOT the VARO, and NOT with any VSO or other representative.  If the Court does not receive the Notice of Appeal within the 120 days, the appeal will be rejected and the Board decision will become final.  

The Veterans Court is a court of review (i.e., it is NOT a trial court), and as such, it reviews what the Board did and decides whether what the Board did was right or wrong.  The Veterans Court does NOT make decisions on the merits of a veteran’s claim.  The Veterans Court reviews the Board's decision for compliance with the law, regulations and rules that apply to the case.  This means that a claimant will not prevail at the Court (or the Federal Circuit or Supreme Court) by simply arguing that the VA made a "mistake," a "wrong decision," or was "unfair."  Cases appealed to the courts must identify specific legal errors by the Board. 

If a claimant is unhappy with the Veterans Court decision, he or she can appeal to the Federal Circuit Court of Appeals.  The Federal Circuit is the appellate court that also reviews government contracts and patents and copyright cases.  It is a very formal and sophisticated court that does not have much patience for ill-conceived appeals.  Any veteran contemplating an appeal to the Federal Circuit should seek opinions from several attorneys about whether the case has any legal chance of success.  The Federal Circuit’s jurisdiction is limited to reviewing legal errors by the Veterans Court.  It cannot and will not consider cases arguing that the Veterans Court or the VA made a bad decision in weighing the facts of a veteran’s case. 

Finally, a claimant can appeal a decision of the Federal Circuit to the United States Supreme Court.  This is a very specialized type of Court and there are numerous rules and requirements about how to prepare such an appeal.  Any veteran getting this far in the process simply must consult with experienced counsel to have any realistic chance of being heard by the Supreme Court.  

Hopefully, this overview has been helpful in identifying the major points in the appeal process for a VA claim. The articles that follow provide more details on specific parts of the process. 

 
Let the Appellate Process Begin! 
 
Keys to Getting the Appeal Out of VARO and to the BVA 

1.    VA form 9:  The Substantive Appeal 

Once veteran files VA form 9, the Board of Veterans’ Appeals (“BVA”) assigns a docket number.  Advise the veteran NOT TO SUBMIT ANY MORE EVIDENCE TO VARO – NO EXCEPTIONS!!  Otherwise, the VARO is required to issue another Supplemental SOC (“SSOC”), more delays ensue, with no change in the outcome of case and, or the original adverse decision. 

BVA assigns a docket number in numerical order, and uses it to decide order of case review on first-in, first-out rule.  If your veteran-claimant qualifies, submit a Motion to Advance Case on BVA’s Docket. Examples of valid reasons for such a motion:  if the veteran-claimant is seriously ill, under severe financial hardship, 75 years or older, or other specific sufficient cause shown (per 38 CFR 20.900 (2007)). 

Note: the filing of the Substantive Appeal (aka “Formal Appeal”) and the earlier NOD are the only 2 MANDATORY actions required of a claimant to perfect an appeal to the BVA.  Like the NOD, the Substantive Appeal must be filed with the VARO that issued the adverse Rating Decision. The Substantive Appeal must be filed within 60 days of the mailing of the SOC or within remainder of 1-year period of mailing of notice of Rating Decision, whichever period ends later. 

Necessary Information To Include on VA form 9 
(Per 38 CFR § 20.202 (2007)): 

a. Identify the Rating Decision by Date 
b. Identify Issues / Claims Denied in Rating Decision 
c. Set out Factual Issues on Appeal and summarize specific arguments for each – KISS (Keep It Simple Stupid) 
d. Set out Legal Issues on Appeal and summarize specific arguments for each – KISS! 
e. Box 8 of the VA form 9 – do you want a BVA Hearing?  If it’s a factual issue involving credibility of the veteran, then consider requesting the BVA hearing. 

Keep in mind that you can request a “Video-conference Hearing” even though it’s not included as an option on the VA form 9.  If a legal issue is at the crux of the appeal, then it is more efficient and effective to pass on BVA hearing and set out detailed argument in a written brief. 

2.    Once the VA form 9 is submitted 

VARO certifies appeal to the BVA (usually by internal VA form 8) and sends the veteran-claimant a “90 day letter” which tells the veteran he or she has 90 days (or until BVA makes a decision) to change representation, submit additional evidence or argument, or change request re a hearing. Even after 90 days, veteran may still be able to do any of these by requesting an extension for “good cause” – see 38 C.F.R. § 20.1304(b)(1). 

3.    Analyzing a BVA Decision for Procedural Errors; i.e., how to identify when the VA failed to comply with VCAA notice requirements 

The Veterans Claims Assistance Act of 2000 requires the VA, upon receipt of a complete or substantially complete application for benefits, to notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  The VCAA is now codified at 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2007). 

First notice element = notice of info or evidence needed to substantiate the claim; 

Second notice element = notice of info and evidence, if any, that claimant must provide in order to substantiate claim; 

Third notice element = notice of info or evidence that the VA, in accordance with duty to assist, will attempt to obtain on behalf of claimant; and, 

Fourth notice element = duty that VA request that the claimant provide any evidence in their possession that pertains to the claim. 

Timing requirement = notice must be provided upon receipt of complete or substantially complete application. 

4.    Analyzing a BVA Decision for the following types of substantive errors: 

?  BVA findings of material fact that are “clearly erroneous”: 

?  Whether constitutional provisions, VA statutes, regulations, or M21-1 provisions were violated or misapplied 

?  Failure to comply with a BVA or CAVC remand order 

?  Failure to reopen a claim supported by new and material evidence 

?  Failure to consider a claim or legal theory reasonably raised by the record 

?  Failure of BVA to State its Reasons or Bases for its Findings of Fact and Conclusions of Law 

?  BVA Findings on Medical or Vocational Issues of Fact Unsupported by Competent Evidence in the Record 

?  The BVA’s Failure to Explain Why It Rejected Positive Evidence Supporting the Claim 

5.  Keys to Filing an Appeal to the CAVC 

The BVA decision must be “final”, which means it must be a denial of a claim for benefits.  If the BVA remands a claim for benefits to the VARO, then the BVA decision is NOT appealable to the Veterans Court. 

What if it’s a multi-issue BVA decision, with one issue is denied, but others are granted or remanded?  Determine whether any of the issues are “inextricably intertwined”.  If so, then the Veterans Court may conclude, after the appeal is filed that the denied issue must be readjudicated with the remanded issue, thus relinquishing its jurisdiction to consider the denied claim.  Note that the “inextricably intertwined” test is not particularly objective.  Thus, if uncertain as to the reviewability of a partial remand, then advocate should file a protective Notice of Appeal (NOA) with the Veterans Court. 

The NOA must be received or mailed using the U.S. Postal Service within 120 days of the date of the BVA decision.  The 120-Day Clock starts ticking when: 

1.  BVA mails decision to last known address of veteran; and, 

2.  If veteran has representative, BVA sends copy to rep by any means so that reasonable to reach rep approximately same time as BVA decision reached veteran. 

BVA has Presumption of Regularity on their side.  How to overcome it: clear evidence to the contrary. 

If you missed the 120-day deadline to file the NOA, the only truly successful way the Veterans Court will excuse it is if the Board’s decision was sent to an old or an incorrect address – and you can prove that it was.  Equitable Tolling (a legal term that meant there were other ways the Court might have excused a veteran missing the 120-day deadline) no longer exists.  

Pursuant to Rule 3(c) of the Veterans Court’s Rules of Practice and Procedure, the following information must be included on a timely-filed NOA to be considered compliant: 

1.    The most recent name, address, and telephone number of the person(s) making the appeal and the appropriate VA claims file number; and, 

2.    Reasonable identification of the actual Board decision (e.g., the date of the Board decision and the issue(s) it denied) being appealed and a statement that can be reasonably construed as seeking Court review of that Board decision; and, 

3.    If filed by a representative, other than one making a limited appearance, be accompanied by a notice of appearance and its attachments.

Keys to a Successful Appeal to the US CAVC 

1.    Know the organization of the Veterans Court: 

The CAVC is the federal court that hears appeals from the BVA.  The CAVC is “young” in that it is only 20 years old; it was created in 1988, when Congress passed Veterans’ Judicial Review Act.  The CAVC consists of seven judges who are appointed by the President to fifteen-year terms. Chief Judge William P. Greene, Jr. has sat at the helm of the CAVC since August 2005.  The CAVC is an appellate court, so it hears no new testimony, conducts no trials, and considers no new evidence.  Instead, it considers the BVA decision, the administrative record that was before the VA, and the briefs of the parties before it. 

2.    The Veterans Court’s Scope of Review 

a.    Regarding Applications of Law 

Pursuant to 38 U.S.C. § 7261(a)(3), the Veterans Court has the authority to set aside pure issues of law as unlawful if the Court finds them to be, among other things, “arbitrary, capricious, [or] an abuse of discretion,” “in violation of statutory right,” “not in accordance with law,” or “without observance of procedure required by law.” See Horowitz v. Brown, 5 Vet.App. 217 (1993). 

When reviewing pure issues of law, the Court reviews the VA’s resolution of the issue de novo, with no deference to the BVA’s view of the law.  

b.    Regarding Adverse BVA Findings of Fact 

The Court reviews BVA findings of fact under a “clearly erroneous” standard; see 38 U.S.C. § 7261(a)(4).  This means that the Veterans Court will NOT substitute its own weighing of the facts for how the Board weighed the facts, unless the Board’s weighing was “clearly erroneous”.  In other words, the Veterans Court gives great deference to the Board’s ability to weigh facts and evidence. 

c.    Regarding Issues Applying Law to Fact 

The Veterans Court will give some deference to BVA determinations involving mixed issues of fact and law.  The Court will not put themselves in the position of the VA and decide what they would have done given same set of facts and law.  Thus, here the Court applies a deferential standard of review, and will not set aside a BVA decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  See 38 U.S.C. § 7261(a)(3)(A) 

d.    Issues Beyond the Veterans Court’s Power To Review 

i.    In most cases, the Veterans Court does not have the authority to resolve issues that were not resolved by the BVA prior to the appeal to the CAVC.  This limit on its power to review is based on two principles: 

1.  The Veterans Court is an appellate court with limited jurisdiction. Pursuant to 38 U.S.C. § 7261(a)(3), the Court is prohibited from making factual findings in the first instance. 

2.  As a reviewing court, the Veterans Court’s role is to determine the propriety of the action taken by the BVA, judged solely on bases invoked by the agency.  This is a fundamental rule in administrative law. 

ii.    The Veterans Court may not review findings of fact made by the BVA that are favorable to the claimant.  Similarly, recent case law seems to indicate that the Veterans Court must accept a BVA or RO ruling that resolves in the claimant’s favor an issue that is partly factual and partly legal in nature.  See, e.g., Williams v. Principi, 15 Vet. App. 189, 198 (2001) (holding that the Court could not review a favorable BVA ruling on the appropriate effective date for award of benefits). 

iii.    The Veterans Court is prohibited from reviewing the propriety of the schedule of ratings for disabilities as specified by Congress or as promulgated by the Secretary of the VA.  BUT, the Veterans Court does have authority to review the BVA’s interpretation of the rating schedule.  See Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004) 

iv.    The CAVC does not have jurisdiction to review the VA Secretary’s exercise of authority under 38 U.S.C. § 503(a) to grant equitable relief to claimants due to administrative error on the part of the VA.  The distinction here is the Secretary’s authority to grant relief based on principles of equity from his authority to award benefits based upon statutory entitlements.