The Board of Veterans’ Appeals (BVA) is one of the main paths for appealing VA decisions. The BVA bases its decisions on the evidence of record submitted before the Regional Office (RO)’s adjudication, along with any new evidence, if applicable. The Board also reviews previous VA and Board decisions to ensure that VA law was applied correctly. After reviewing, a Veterans Law Judge at the BVA will issue a decision.
Here are some tips from CCK about how to interpret and respond to a BVA decision letter.
Who We Are: Chisholm Chisholm & Kilpatrick is the largest veterans law firm in the US. For more than 25 years, CCK has argued many of the cases that shape veterans law today. With over 300 years of combined experience, our attorneys and advocates have secured more than $1 billion in benefits for our clients.
The following are types of Board decisions and, if needed, what steps veterans can take to continue their appeal.
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The Board may decide to fully or partially grant the benefits sought on appeal. Usually, if the Board grants a claim, it will send the claim back to the RO for implementation. For example, in many situations, the Board may grant service connection, but the RO will determine the effective date of the claim and any disability ratings. In an increased rating claim, the Board will assign the veteran a specific rating and instruct the RO to determine the proper effective date.
Veterans do not immediately receive their retroactive benefits (i.e., back pay) following a grant from the Board of Veterans’ Appeals. Usually, these benefits are paid following the RO’s rating decision. It is important to note that VA does not operate on any specific timeline in regard to awarding back pay, and wait times can vary depending on the complexity of the veteran’s case.
A “remand” is a legal term that describes the process in which a superior court remands — or sends back — an appeal to a lower court for another look. A Board remand occurs when the Board of Veterans’ Appeals determines that additional information is needed before making a final decision on a veteran’s claim for benefits.
If the Board chooses to remand the claim, it will return to the VA RO for further evidence collection and to complete any remand instructions. A remand is an order that the RO must follow. If the RO fails to follow the instructions given by the Board in the remand, then the veteran has the right to appeal again.
Following a remand, the RO will work through each of the Board’s instructions and may request additional information from the veteran. After the RO completes the Board’s remand instructions, it will issue a decision on the veteran’s claim.
If VA continues to deny the veteran’s claim, it will return the case to the Board. The Board will grant, deny, or remand the case again. There is no limit on the number of times a Board judge may remand a veteran’s case.
Finally, the Board may also partially or fully deny a veteran’s claim. This occurs when the Board determines that the veteran is not entitled to the benefits they are seeking on appeal.
However, if the BVA denies a veteran’s claim, it is not the end of the road. There are several options to continue appealing following a BVA denial.
If a veteran disagrees with the BVA’s decision, they can appeal. Typically, veterans choose from the following ways to appeal their decision:
The CAVC is a federal court located in Washington, D.C., and dedicated to hearing the appeals of claimants (i.e., veterans and their dependents) who have been unsuccessful in their cases before the Board of Veterans’ Appeals.
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Importantly, the CAVC is not part of the Department of Veterans Affairs. Rather, it is an entirely separate federal entity with jurisdiction over VA. When appealing to the CAVC, VA will have an attorney defending the agency’s position and opposing the veteran’s position. Essentially, veterans are taking legal action against the Secretary of the U.S. Department of Veterans Affairs.
While veterans do have the right to appeal to the CAVC on their own (i.e., “pro se”), the process can be extremely difficult to navigate for those without knowledge, resources, or experience. An experienced attorney can significantly increase a veteran’s chances of winning their CAVC appeal. Learn more about how to pick an attorney for a CAVC appeal.
Did you know? At Chisholm Chisholm & Kilpatrick, appellants do not need to pay attorney fees for successful appeals (remands) before the CAVC. Fees are covered by the Equal Access to Justice Act (EAJA), which is a federal law that allows individuals, small businesses, and public interest groups to obtain representation before the federal government at no cost in the event the group or individual is successful.
Again, claimants only have 120 days from the date of the Board decision to file a CAVC appeal before the decision becomes final. To file a CAVC appeal, claimants must complete a Notice of Appeal with the Court, which includes personal identifying information and details about the Board decision.
Generally, the CAVC either affirms or vacates and remands a Board decision back down to the Board. In rare situations the Court will reverse a decision, meaning it sends the case back to the Board with instructions to change a finding or grant a benefit.
If a veteran receives a denial from the CAVC, they can again submit a supplemental claim within one year. Alternatively, veterans can appeal to the Federal Circuit (i.e., the next level of the federal system) within 60 days of the judgment. However, to do so, a legal error must have occurred during the Court’s decision making.
VA appeals can be highly complex, and errors may lead to delayed or lost benefits, missed deadlines, and additional frustration. If you require assistance appealing a decision made by the Board of Veterans’ Appeals, contact CCK today. We offer complimentary consultations to determine if we can help with your appeal.
Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.
