The Veterans Benefits Claims And Appeals Process

[Wings]

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OCONNORJCI.DOC

6/19/2001 10:50 AM

AMERICAN UNIVERSITY LAW REVIEW [Vol. 49:1279]

THE VETERANS BENEFITS CLAIMS AND APPEALS PROCESS

In order to obtain veterans benefits, the person seeking the

benefits must first file a claim with the VA Regional Office.21 After

the appropriate development22 of the claim, the Regional Office then

makes a decision, usually referred to as a “rating decision.”23 Once

the Regional Office has rendered a decision regarding a claim that is

adverse to the claimant, the claimant may appeal to the Board of

Veterans’ Appeals (“Board”).24

The first step in the appeals process is the filing of a timely “Notice

of Disagreement” by the claimant.37 A Notice of Disagreement is “[a]

written communication from a claimant or his or her representative

expressing dissatisfaction with an adjudicative determination by the

agency of original jurisdiction and a desire to contest the result.”38

The claimant must file the Notice of Disagreement within one year of

the agency’s mailing of notice of the decision to be appealed.39 The

filing of a timely Notice of Disagreement is a jurisdictional

requirement for obtaining appellate review.40

After the claimant has filed a Notice of Disagreement,

responsibility shifts to the VA Regional Office to issue a “Statement of

the Case.”41 The Statement of the Case must contain a summary of

the evidence in the case pertinent to the issue or issues with which

disagreement has been expressed; a citation to pertinent laws and

regulations; a discussion of how those laws and regulations affect the

agency’s decision; a decision on each issue; and a summary of the

reasons for the decision.42 The purpose of the Statement of the Case

is to frame the issues for appeal and assist the claimant in preparing

arguments to the Board.43

After the Regional Office issues the Statement of the Case, the

claimant must then file a Substantive Appeal.44 In the Substantive

Appeal, the claimant “should set out specific allegations of error of

fact or law, [and] such allegations [should be] related to specific

items in the statement of the case. The benefits sought on appeal

must be clearly identified.”45

After the claimant files the Substantive Appeal, the Board must

then render a decision.46 In rendering its decision, the Board is

required to provide “a written statement of its findings and

conclusions, and the reasons or bases for those findings and

conclusions, on all material issues of fact and law presented on the

record.”47

Prior to 1988, there was no judicial review of the decisions of the

Board.48 In 1988, the Veterans’ Judicial Review Act49 created the

Court of Veterans Appeals, a seven-member Article I court.50 On

March 1, 1999, the name of the United States Court of Veterans

Appeals was changed to the United States Court of Appeals for

Veterans Claims.51 This Article will refer to that court as the Court of

Appeals for Veterans Claims (or “CAVC”).

Article I courts, or “legislative” courts, are created under Article I,

section 8 of the Constitution.52 Article III courts, or “constitutional”

courts, are created under Article III, section 1.53. Article I courts

include the Tax Court, the Court of Federal Claims, the Court of

Military Appeals, as well as the Court of Appeals for Veterans Claims.54

Courts have interpreted the powers of an Article I court to be

“limited by what it has been given it by specific acts of Congress and

by its own rules adopted pursuant to Congressional authority.”55

If the Board renders an adverse decision, the claimant may either

file a motion for reconsideration with the Chairman of the Board56 or

file a Notice of Appeal to the Court of Appeals for Veterans Claims.57

The agency may not seek review of a Board decision.58

The Court of Appeals for Veterans Claims’ review is “on the record

of proceedings before the Secretary and the Board” and the court has

the power “to affirm, modify, or reverse a decision of the Board or to

remand the matter, as appropriate.”59 Initial decisions are usually

made by a single judge.60 A party, however, may move for panel

(three-judge)61 or full court (seven-judge)62 consideration. A party

may also move for reconsideration.63

If the Court of Appeals for Veterans Claims makes an adverse

decision, review is available by the United States Court of Appeals for

the Federal Circuit.64 The Court of Appeals for the Federal Circuit is

a relatively new court. The court was created in 1982 and was

originally given appellate jurisdiction over the Court of Claims and

the Court of Customs and Patent Appeals.65 Congress has limited the

Federal Circuit’s jurisdiction over decisions of the Court of Appeals

for Veterans Claims to those appeals that challenge the validity of any

statute or regulation or any interpretation of a statute or regulation.66

An issue otherwise within the Federal Circuit’s jurisdiction must, in

addition, be one upon which the Court of Appeals for Veterans

Claims relied in making its decision.67 Either the agency or the

claimant may seek review in the Federal Circuit.68 The Supreme

Court may review the Federal Circuit’s decision.69 To date, the

Supreme Court has only granted certiorari in one case.70

vol49_6_oconnor_1_.pdf

[Pete53]

Thanks Wings good post