VA Disability - Step 8: Filing A Court Appeal

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VA Disability - Step 8: Filing A Court Appeal

If the BVA denies your claim

If you are not satisfied with any part of the Board decision, you can appeal to the U.S. Court of Appeals for Veterans Claims (the "Veterans Court").  The Veterans Court only handles BVA appeals on behalf of veterans. The Court website also has useful information about the appeal process.

Should I file an appeal with the Veterans Court?

In recent years, the BVA has been making final decisions in about 40,000 cases each year.  The majority of cases appealed to the Veterans Court find errors in the BVA decision. However, relatively few veterans file appeals with the Court.

 It is important to understand that the Veterans Court is just that: a court. The rules change at this point.  Actions before the Veterans Court are strictly adversarial.  

Even if you have not done so before, we strongly recommend that you use a lawyer's help if you decide to appeal to Court.  Otherwise, you will be on your own against a lawyer from the VA Office of General Counsel.

The first step is to file a Notice of Appeal from the BVA decision.  It is absolutely critical to file a Notice of Appeal with the Court within 120 days of the date stamped on the Board decision.

File the Notice with the Court - not the Board, not the VA Regional Office, and not with any VSO or other representative. If the Court does not receive the Notice of Appeal within the 120 days, it will reject your appeal and the Board decision will become final.

If you have filed the Notice of Appeal without a lawyer's help, the Court will list you as "self represented" on their website.  They also list your contact information on their website, because filing a Notice of Appeal with the Court is a  public record.  Lawyers from around the country who handle VA cases may contact you to offer their services. Depending on your household income, you may qualify for a free lawyer from the Veterans Consortium Pro Bono Program. Continue here to see if the Veterans Consortium can help you with your appeal to the Court.

What happens at the Veterans Court? 

The Veterans Court is an appellate court, which means it only reviews Board decisions. The Court primarily looks to see that the Board followed the laws that apply to your case. The Court does not make its own factual findings. This means that you will not prevail on appeal by simply arguing that the VA made a "mistake" or was "unfair." You must identify specific legal errors the Board made.  An experienced VA claims lawyer will be familiar with BVA decisions and the kinds of errors that the Court has found in other cases. 

The Court decision will be based on a review of your file and the written legal arguments made in documents filed with the Court.   In many cases, the Court is able to make a decision just on the basis of the written paperwork.

The Court does hold hearings on some cases. However, these are not like trials in which you and other people explain what happened.  The Court hearing is designed to allow the judge(s) to listen to the legal arguments about the BVA decision and to ask questions of the lawyers.

Finally, it is important to know that the Court does not have the ability to grant your claim and award you benefits.  If the Court finds a legal error in the BVA decision, it will send the case back to the VA (on a "remand") to be re-decided based on the rules.  This means that more time will go by before you get a final decision on your claim.

Can I keep going with more appeals?

If you are unhappy with the Veterans Court decision, you can appeal to the Federal Circuit Court of Appeals. This is the appellate court that also reviews government contracts, patents and copyright cases, and many other types of issues. It is a very formal court with little patience for ill-conceived appeals. If you are thinking about appealling to the Federal Circuit, I advise that you seek opinons from more than one lawyer about whether the case has any legal chance of success. The Federal Circuit is limited to reviewing legal errors made by the Veterans Court. Again, it cannot and will not consider arguments that VA made a bad decision or made fact findings that you disagree with.

Finally, you can appeal a decision of the Federal Circuit Court to the United States Supreme Court. This is a very specialized Court and preparing an appeal is complicated. If you get this far in the process, you simply must consult with an experienced lawyer. Otherwise, you have no realisic chance of being heard by the Supreme Court.

June 2010; partially updated September 2016