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Thursday, May 9, 2013

Overview of the Appeal Process for Veterans’ Claims

Daniel T. Shedd
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 include disability compensation and pensions, education benefits, survivor benefits, medical treatment, life insurance, vocational rehabilitation, and burial and memorial benefits. In order to receive these benefits, a veteran (or an eligible family member) must apply for them by submitting the necessary information to a local VA office. The local VA office will make an initial determination on the application for benefits. Any veteran who is not satisfied with the local VA’s determination is permitted to appeal the decision. This report provides a step-by-step breakdown of the appeal process for veterans’ claims.

After an appeal is filed, the local VA office will again review the claim. If the local VA office still denies the claim, the local VA office will prepare the claim file for the appeal and provide the claimant with a blank VA Form 9—a form that must be completed to make an appeal to the Board of Veterans’ Appeals (BVA). Claimants must follow specific procedures to request the appeal and must meet certain deadlines for submitting the proper information.

The claimant may choose to have a hearing with the BVA during the appeal process. There are three different types of hearings that the claimant may choose: (1) an in-person hearing with a BVA member, held in Washington, DC; (2) an in-person hearing with a BVA member, held at a local VA office; or (3) a teleconference hearing. The hearings with the BVA are informal and nonadversarial in nature. The claimant will be given the opportunity to explain the reasons for the appeal and to submit additional evidence during the hearing. The claimant may be represented during the appeal process.

After the BVA reaches a decision on the appeal, there are further options the claimant may pursue if he or she is still not satisfied with the BVA decision. A claimant may file a notice of appeal with the Court of Appeals for Veterans Claims (CAVC). The CAVC, an Article I court, has exclusive jurisdiction to review decisions of the BVA. A claimant must submit a notice of appeal within 120 days of receiving the decision from the BVA. However, a recent Supreme Court decision, Henderson v. Shinseki, clarified that the 120-day deadline is not a “jurisdictional” deadline. Therefore, an appeal to the CAVC will not necessarily be dismissed for missing the deadline. However, the claimant must have a good reason for filing late, such as an inability to meet the deadline due to mental incapacity. This report will examine this case and discuss various acceptable reasons for missing the 120-day deadline.

The VA’s appeal process consistently receives congressional attention. In the 113
th Congress, legislation has been introduced that would require the VA to distribute appeal forms to claimants along with any notice of decision on a claim. In the 112th Congress, various pieces of legislation were proposed that would have altered the appeal process. These proposals ranged from extending the 120-day filing deadline with the CAVC to requiring CAVC judges to live within a certain distance of Washington, DC. The proposed legislation from the 113th and 112th Congresses is discussed in the Appendix to this report.

Date of Report: April 29, 2013
Number of Pages: 21
Order Number: R42609
Price: $29.95

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