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Monday, April 25, 2011

Veterans Affairs: The Appeal Process for Veterans’ Claims

Douglas Reid Weimer
Legislative Attorney

Congress, through the U.S. Department of Veterans Affairs (VA), provides a variety of benefits and services to veterans and to certain members of their families. These benefits range from health care and related services to burial benefits. The veteran’s basic eligibility for these programs and services is usually determined by the local VA office. Veterans not satisfied with the VA’s decision(s) may wish to have them reviewed and may appeal the decision(s). The VA has certain statutory obligations to assist the veteran in the preparation of his/her application for benefits and any subsequent appeal(s). Among these obligations are assistance in the preparation of the initial application; provision of various records; medical exams; and other related issues. Certain legal and factual presumptions are established by statute that may be favorable to the veteran’s claim. These issues are examined in Appendix A of this report.

Following the filing of the initial appeal, the local VA office will either allow or disallow the claim. If the veteran/claimant wishes to appeal further, a written request for appeal must be filed and various time deadlines and other requirements must be met prior to the case being considered by the Board of Veterans’ Appeals (BVA). The appeal before the BVA may be a hearing at the local VA office by a traveling Board member; a hearing at the BVA office in Washington, DC; or a videoconference hearing at the local VA office. There are specific guidelines for a person representing a veteran before the BVA. The veteran/claimant may appeal the decision of the BVA to the Court of Appeals for Veterans Claims (CAVC), which is an independent federal court and not part of the VA. Appeal to the CAVC involves a 120-day appeal deadline, which has been the subject of legislation and a recent U.S. Supreme Court decision, discussed below. The decision of the CAVC may be appealed by either the veteran/claimant or the VA to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), an Article III court that sits in Washington, DC, and has exclusive jurisdiction to hear cases challenging CAVC rulings. Decisions of the Federal Circuit may be appealed to the Supreme Court, which has final jurisdiction.

In the 111
th Congress, legislation was considered to modify the current 120-day time limit for an appeal from the BVA’s final decision to be filed with the CAVC; however, none was enacted. On February 18, 2011, Representative Bob Filner introduced H.R. 810, which is similar to legislation introduced in the 111th Congress. If enacted, the bill would extend the 120-day limit for the filing of an appeal to the CAVC after a final decision of the BVA, upon a showing of “good cause” for such time as justice may require. For purposes of this legislation, “good cause” is considered to be the inability of a person to file within the 120-day period due to a service-connected disability. Meanwhile, the Supreme Court recently considered the 120-day limit for appeals to the CAVC in Henderson v. Shinseki (U.S. No. 09-1036). In its March 1, 2011, holding, the Court determined that the 120-day rule was not jurisdictional, and therefore did not necessarily preclude consideration of appeals following its expiration, under certain circumstances. The court did not prescribe specific criteria for these circumstances, but noted that veterans benefits legislation is generally interpreted as being “favorable to veterans.” Legislative and administrative action may follow to implement the 120-day rule consistent with the holding in Henderson. This report traces the various steps involved in the appeal process—starting with the original application for benefits and concluding with an appeal to the Supreme Court. A chart outlining all of the steps in the appeal process is provided. Legislation was introduced in the 111th Congress concerning the appeal process which can generally be categorized as (1) streamlining the appeal process; and (2) extending the 120-day application appeal deadline to the CAVC. (See Appendix B.) In addition to H.R. 810, it is expected that other similar legislation concerning the appeal process may be introduced in the 112th Congress.

Date of Report: April 7, 2011
Number of Pages: 27
Order Number: RL33704
Price: $29.95

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