Occasionally a veteran’s claim for disability compensation must be appealed to the US Court of Appeals for Veterans Claims, commonly called the “Veterans Court” or the “Court” for short. Cases pending before the Court use a modified version of the Federal Rules of Appellate Procedure, and can often be confusing for those who are unfamiliar with them. This article provides a summary of how cases progress at the Veterans Court. We hope that this information will help you understand how your appeal will move forward and provide a time-frame for when you will receive a decision in your case.
STEPS OF AN APPEAL
The following list, includes the most common steps of an appeal at the Court of Appeals for Veterans Appeals:
Filing the Notice of Appeal: The first step to start an appeal is to file a Notice of Appeal. This document must be filed within 120 days after you receive a decision from the Board of Veterans’ Appeals. You may have filed this document before contacting us, but if not, we will assist you with filing it.
Board Decision: The VA is required to file a copy of the Board’s decision with the Court within 30 days after you file a Notice of Appeal. When you receive this document it will look familiar to you, as it will be the same document you previously received from the Board. However, the Court will not have seen the Board’s decision until the VA’s lawyers file it.
Record Before the Agency: 60 days after your Notice of Appeal is filed the VA will send an electronic file containing all of the documents that were in your claims folder at the time that the Board made its decision. This document is called the Record Before the Agency. Sometimes this is referred to as the RBA or simply the Record. The RBA includes your service records, medical records, as well as any other documents you submitted to the VA in connection with your claim. The Record will therefore include all of the documents and evidence that we will use in your appeal. It is important for you to understand that the Court is not permitted to address any new evidence -- it may only consider evidence that was in the Record at the time that the Board made its decision. Once we receive the RBA we will have 19 days to review it to ensure that no documents are missing.
Rule 33 Conference Notice: After the time for reviewing the Record Before the Agency has expired, the Court will schedule a telephone conference that the attorneys involved in your case are required to attend. This conference is sometimes referred to as the “Rule 33 Conference” or the “Briefing Conference.” At the Rule 33 conference the attorneys will discuss whether your case can be resolved without submitting a written argument to the Court. To facilitate this meeting the Court will assign a mediator to help guide the attorneys’ discussion. If the VA’s attorney agrees the Board made a mistake then, in most instances, your case will be remanded (sent back to the Board) with an instruction to correctly apply the law. In very rare cases the VA might agree that benefits should be granted outright without a remand, but you should be aware that this is the exception rather than the norm.
Rule 33 Memorandum: 14 days before the Rule 33 conference, we will be required to file a memo, commonly called the “summary of issues,” explaining the issues that we intend to raise in our written argument to the Court. This document is the first opportunity that we have to tell the VA about the errors we believe the Board made when deciding your case.
Appellant’s Brief: If we do not come to an agreement with the VA’s attorney during the Rule 33 conference, we will be required to file a written argument, commonly called a brief, with the Court 30 days after the conference. This brief will include the facts of your case as well as our legal argument concerning the error(s) that the Board made in your case. In many ways, it may seem like a longer, more detailed version of the statement of issues.
Appellee’s Brief: After we submit the Appellant’s Brief, the VA must submit its written argument within 60 days. The Appellee’s Brief is the VA’s opportunity to argue why the Board did not make an error when deciding your case.
Reply Brief: 14 days after the VA submits the Appellee’s Brief, we will have an opportunity to file a reply brief arguing why the arguments the VA made are incorrect. This brief is shorter than the Appellant’s Brief and intended only to address the VA’s argument in their written brief.
Record of Proceedings: Once all of the briefs have been filed in your case, the VA will create a document called the Record of Proceedings. This document is a condensed version of the RBA that includes copies of only the documents that were cited in the written arguments. This document is intended to help the Court review your case by providing it with easily accessible copies of the referenced documents. The VA will submit the Record of Proceedings 14 days after we submit the Reply Brief.
Case Assigned to a Judge: After the VA submits the ROP, the Court will assign your case to a judge. Currently, the average time that it takes the court to decide a case once it is assigned to a judge is 85 days. Sometimes a case involves unique issues that the Court believes should be addressed by more than just one judge. In those instances, your case might be assigned to a panel of 3 or 7 judges instead of a single judge. If that occurs, it might take a bit longer to resolve your case.
If You Receive a Favorable Outcome: If the Court agrees with our argument, your case will most likely be remanded, or sent back, to the Board with instructions to correctly apply the law and reconsider your case. In addition, if you receive a favorable outcome, we are able to recover the cost for our services from the federal government under the Equal Access to Justice Act. To recover these costs, we will submit an application documenting the time that we spent on your behalf. We will submit this application to recover our costs approximately 30 days after the favorable decision in your case.
If You Receive an Unfavorable Outcome: If the Court disagrees with our arguments and denies your appeal, then we will evaluate whether we are able to appeal your case to the next higher court, called the U.S. Court of Appeals for the Federal Circuit. Appeals to this court are rare but in some circumstances appropriate. We will discuss whether we are able to provide additional help for this type of appeal after we receive the decision from the Court.
Although we have provided the information above to give you the general timeframe for your appeal, each of the deadlines we discussed can be extended if need arises. In general, the Court allows each party to take up to a 45-day extension. These extensions are common. While we always try to minimize the number and duration of extensions we take, these extensions are often required to ensure we are able to put forth the best possible arguments in your case and avoid conflicts with other cases. We will always let you know when an extension has been requested in your case.