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Thursday, April 7, 2011

Veterans Affairs: The U.S. Court of Appeals for Veterans Claims—Judicial Review of VA Decision Making

Douglas Reid Weimer
Legislative Attorney

Congress, through the Department of Veterans Affairs (VA), extends various benefits to veterans and certain of their family members. Sometimes veterans may not agree with the VA’s initial decisions concerning the award and/or the amount of these benefits. Within the VA, there is an extensive appeal/review process that concludes with the decision of the Board of Veterans’ Appeals (BVA). Final decisions of the BVA may be appealed to the U.S. Court of Appeals for Veterans Claims (CAVC), which is an independent federal court, entirely separate from the VA.

Legislation was enacted in the 111
th Congress dealing with CAVC funding and administrative matters. The 111th Congress also considered bills dealing with operational and appeal procedures to the CAVC, including bills 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, the Fair Access to Veterans Benefits Act of 2011, which is similar to legislation introduced in the 111
th 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 the 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 U.S. Supreme Court recently considered the 120-day time 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 previous legislation had been enacted and interpreted as being “favorable to veterans.” Legislative and administrative action may follow to implement the 120-day rule consistently with the holding in Henderson. As noted above, related legislation is currently pending.

Date of Report: March 28, 2011
Number of Pages: 11
Order Number: RS22561
Price: $29.95

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