U.S. Court of Appeals for Veterans Claims (CAVC) Appeals

Overview:

The United States Court of Appeals for Veterans Claims (CAVC) is an Article 1 Court, meaning Congress created this Court as provided by Article I of the U.S. Constitution. The court was created on November 18, 1988, under Public Law 100-687. Eleven years later, in 1999, Congress renamed this court to the U.S. Court of Appeals for Veterans Claims.

The CAVC has exclusive jurisdiction to review all final decisions from the Board of Veterans Appeals (BVA). This court is an appellate court with the judges appointed by the President of the United States and confirmed by the Senate for terms of either 13 or 15 years. Appointment as a CAVC Judge is not a lifetime appointment, which is one of the primary differences between Federal Courts formed under Article III of the U.S. Constitution and the CAVC. The CAVC is not a part of the Department of Veterans Affairs -- the CAVC is a federal court and part of the judiciary.

The CAVC is a federal court where all appeals of veterans' claims denied at the BVA must be filed. Appeals of BVA decisions cannot be filed at a Federal Court in your state. Furthermore, unlike all VA proceedings you might have previously been a part of, CAVC proceedings are adversarial, and this proceeding will be a review of the record only. This means that the VA no longer has a duty under the Veteran's Claim Assistance Act (VCAA) to assist the veteran in developing evidence and supporting his claim at the CAVC.

Another difference that the veteran should be aware of is the fact that without the assistance of the VCAA, the CAVC proceedings will not be a trial to submit new evidence. With limited exceptions, the Court will only review the record, and there will not be oral testimony. The U.S. CAVC publishes court rules and procedures. Both parties are expected, in fact required, to follow the rules of practice and procedure set forth by the Court.

Procedures:

First, to be placed on the CAVC docket you must file a Notice of Appeal (NOA) with the court within 120 days of the BVA decision date of an adverse ruling in your case. The notice of appeal must be in writing, and must be received by the Clerk of the Court no later than 120 days after the BVA decision.¹ Upon receipt of the NOA, the Court will issue a Notice of Docketing. Notice of Docketing indicates that the Court has notified the parties (veteran = appellant [party requesting appeal of the BVA decision], VA = appellee [party defendant of the BVA decision]), and placed the case on the docket (record in which the judge or the court notes all the proceedings and filings in a court case).

The VA (VA Secretary, who is also designated the appellee) is required to file a copy of the final BVA decision with the Court.² The Secretary is represented by VA attorneys working for the VA General Counsel. These VA attorneys will present the VA's case. Knowledge of the law, medical, and CAVC procedures and rules, are critical at this stage of the Veteran's claim appeal.

Timelines and actions are also critical during these proceedings. The following paragraphs give a brief outline of the procedures to appeal a veteran claim to the CAVC. The first step is getting the claim to the CAVC, which in-turn "dockets" the case. When the CAVC clerk dockets your claim your claim transforms into a court case.

Designation of Record (DOR) and Counter-Designation of Record (CDR)³:

After the docketing, the VA (appellee) is responsible for submitting the DOR, which is a complete record of all military service, VA, and service medical records. This record should include any private medical treatment records the veteran has submitted or requested that the VA procure. The veteran is given the opportunity to go through the DOR and make an assessment as to whether the DOR is complete or to submit a CDR if the DOR is missing documents.

It is imperative to do a page-by-page comparison of the records which constitute the C-File and DOR. The DOR should contain all materials that were in the claim file "on the date the Board issued the decision from which the appeal was taken."⁴ When records are voluminous, it is easy for a page to not copy. If the page is missing the Court cannot evaluate that information. A CDR is the DOR corrected to include all the documents that were material for the BVA court to make a decision in the case on the date of the BVA decision. The Court will only review the record before it; therefore, this is a critical step in the appeal process. It is the veteran's or his attorney's responsibility to make sure all records previously presented is included in the Counter-Designation of Record. Leaving out, for instance, an important private physician record previously submitted to the VA could be fatal to the veteran's claim. Leaving out one page of a large medical opinion or report could be fatal to the appeal. That page may be the critical page stating the veteran's medical condition.

One example that comes to mind regarding the importance of making sure that all paperwork is in order, concerns one of my cases concerning a claim of knee injuries during wartime service and under enemy attack. In that case, the one page documenting the veteran's medical disability was missing. By comparing the veteran's C-File to the DOR, the omission was found. The missing page was the only document that conclusively stated the veteran's knees were injured during a combat operation while under enemy attack.

The submission of the DOR occurred approximately 60 days after the Notice of Docketing. The CDR is due 30 days after the submission of the DOR. Time is of the essence during this process. After the CDR has been agreed to by the parties, the record on appeal (ROA) is transmitted to the Court. A court will then designate a briefing schedule and a prehearing conference may be scheduled.

Depending on the outcome of the prehearing conference, the Appellant's Brief or motion to remand is required within 60 days after the notice of briefing schedule has been ordered. The prehearing conference will occur only a short time before the Appellant's brief is due.

The Appellee's Brief is due 60 days after the Appellant's brief is submitted to the Court. The appellant receives a final 14 days to submit a Reply Brief once the appellee's brief is submitted. Once all of these briefs have been submitted, the Court has all the information required to issue a decision. The court may order oral arguments, but this is not necessary, and is used only to clarify arguments that the Court requests.

After a decision is rendered, the appellant has 21 days to submit a Motion for Reconsideration, or for a Decision by a Panel or by the full court under Rule 35. The Secretary is not allowed to appeal a decision granting the veteran's claim.

A CAVC Order may Remand the matter to the BVA, grant the veteran's claim, or deny the veteran's claim. If the veteran loses his appeal he may appeal the CAVC decision to the Federal Circuit. A loss at the Federal Circuit only leaves the veteran an appeal to the Supreme Court of the United States.

<sup>1. CAVC R. 4a.
2. Id. R. 4(c).
3. Id. R. 10(b) & 26.
4. Id. at R. 10(a)(1).</sup>