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Are you unhappy with the outcome of your Do you want the Court of Appeals for Are you looking for a free lawyer to help you? Have you recently had an appeal of a claim for VA benefits denied by the Board of Veterans’ Appeals (BVA)? If so, you most likely have the right to appeal that decision. Because the BVA is the final level of review within the Department of Veterans Affairs (VA), an appeal of a BVA decision must be made to the U.S. Court of Appeals for Veterans Claims (CAVC), a special court for veterans and their families. The Court of Appeals for Veterans Claims is a separate, independent judicial body and is NOT part of VA. There are many reasons to seek a lawyer’s help with your appeal. Although you are not required to have a lawyer represent you, you will be at a significant disadvantage without one. The CAVC has specific Rules of Practice and Procedure that must be followed. You may be unfamiliar with those rules and procedures, as well as with the ever-changing law of veterans benefits. A lawyer can guide you through the system and help you make the best arguments for your appeal. Neither the Court nor VA will find a lawyer for you. Finding a lawyer is strictly your responsibility. In 1992, Congress created a program to provide free legal representation to veterans and their families who have cases that should be appealed. This Congressional action resulted in the formation of the Veterans Consortium Pro Bono Program. The Pro Bono Program recruits and trains volunteer lawyers to help eligible veterans and their families with appeals to the Court of Appeals for Veterans Claims. This brochure describes how to obtain legal assistance for your appeal to the Court and, specifically, the services provided by the Veterans Consortium Pro Bono Program.FILING AN APPEALQ: How do I file an appeal with the Court? A: You have 120 days from the date of your final BVA decision to file an appeal. The Court cannot usually extend this time, so do not delay! You can only appeal a final BVA decision that denied some or all of your requests for benefits. You do not need a lawyer to file the appeal. You only need to complete the Court’s Form 1 (Notice of Appeal) and send it to the Court. There is a one-time $50 fee to file, but you can ask the court to waive the fee by filing the Court’s Form 4 (Declaration of Financial Hardship). You can download these forms from the Court’s website at www.vetapp.gov; you can request them from the court at the address below; or the Pro Bono Program can send them to you. If time is running out and you cannot get these forms, you may simply print your name, current address, and telephone number on a piece of paper and write: “I want to appeal my BVA decision dated ___________.” Then sign your name. Don’t forget the 120-day deadline for filing. Mail, hand deliver, or fax the completed form(s) or your letter to:
SEND YOUR NOTICE OF APPEAL FORM DIRECTLY TO THE COURT. DO NOT SEND IT TO THE VA OR THE PRO BONO PROGRAM! NOTE: It is very important to use the Court’s complete address, including “Suite 900.” VA also has an office at 625 Indiana Avenue, and if the Postal Service delivers your appeal to VA instead of to the Court, you can lose your case before you even get a chance to tell the Court your side of the matter. A notice of appeal will still be considered to be on time even if the Court does not receive it within the 120-day deadline IF you mailed it to the Court’s correct address AND it contains a legible U.S. Postal Service postmark dated within the 120-day time limit. Regular, first class mail is fine. You do not need to send it express mail, priority mail, or certified mail. (Note that a Federal Express or other delivery service date stamp, or foreign postal service postmark, does not count, and if you send your Notice of Appeal in any of these ways, the date the Court actually receives your Notice of Appeal will be your filing date.) Finally, please note that there are two parties to every appeal to the Court. You will always be the “appellant” in the case, while the opponent in every appeal is the Secretary of Veterans Affairs. The Secretary will always be referred to as the “appellee.”FINDING AN LAWYERQ. Where do I find a lawyer? A. There are several ways to find a lawyer to help you with your appeal:
Q. What will I have to pay for a lawyer? A. If you hire a lawyer outside of these free alternatives, the fee can be an amount agreed to between you and your lawyer or it can be a percentage of any benefits you eventually receive from VA (called a “contingency fee”). There are limits set by VA on what a “for fee” lawyer can charge, so the lawyer must file a copy of the fee agreement with the Court. Q. How do I ask the Pro Bono Program to help me find a lawyer? A. If you have filed an appeal at the Court without representation, the Pro Bono Program will contact you shortly thereafter. You will be asked to complete the two forms that you receive and mail, fax, or e-mail them back to the Pro Bono Program. In the alternative, you may download the forms from this site and send them to us. Although we can accept a fax to begin the process, you must send us a hard copy with a valid signature. The “Retainer and Power of Attorney” form gives the Pro Bono Program permission to read your claims file at VA to evaluate your case. The “Financial Disclosure” form gives the Pro Bono Program information about how much money you earn, and it is required to determine if you meet financial eligibility requirements. Complete the forms, sign them, and send them to: If you meet the financial eligibility requirements, the Pro Bono Program will review your case. They will then either (1) select a lawyer who will provide you free legal representation for the appeal; or (2) notify you of the problems with the case, why a free lawyer is not being provided, and other possible options. There is no cost to you for this evaluation. Q. What will a lawyer do for me? A. If a lawyer or other representative assists you with your appeal at the Court, he or she will:
Q. How do I keep track of my case after I file my appeal? A. When you file your notice of appeal, the Clerk of the Court will assign your case a number. This number is known as a docket number and will be different from your VA claim file number, your military service number, and your Social Security number. The first two digits of the docket number are the last two digits of the year in which the claim is filed. The last four digits represent the order in which appeals are received by the Court during the calendar year. Thus the tenth notice of appeal filed in 2006 would have docket number “06-0010.” All of the docket information is available on the Court’s website at www.vetapp.gov. Click on “Search–Case Dockets” in the middle of the Court’s home page. You can access information about your appeal by using your docket number or your last name. If you do not have a lawyer or other representative, you must include your docket number on your letter whenever you write to the Court about your appeal and on any materials you send to the Court. If you have a lawyer, he or she should help you keep track of the case. Q. What if I have questions? A. Ask your lawyer. Do not contact the Court or VA directly; your lawyer or representative will do that for you. If the Pro Bono Program is evaluating your appeal, you can contact the Program with questions about your case. You can get in touch with the Pro Bono Program at any time after you have returned the required forms—even if you have not been informed of the results of their review of your case yet. The office of the Clerk of the Court can also answer questions—but only about procedures and the status of your appeal. The Clerk’s office will not give you legal advice, nor predict how or when your appeal might be decided. Contact the Clerk’s office only when you do not have a lawyer or representative, and only if you have not asked the Pro Bono Program to review your case. You can reach the Clerk’s office at (202) 501-5970.Q. What happens if the Court rules in my favor? How much money will I receive? A. If the Court believes your appeal has merit, usually it will remand (send back) your case to the Board of Veterans’ Appeals for additional action. Only rarely does the Court reverse a BVA decision or substitute a decision of its own. Even if the Court decides you are entitled to benefits, VA determines how much money is owed to you. There may be basis for another appeal if you think VA (1) did not pay you all the money that you believe you should have received or (2) did not grant the proper or complete rating. Q. What happens if my case is sent back to the BVA? A. If the court remands your case, the BVA will review its original decision as directed by the Court. The BVA may also send your case to a VA regional office for additional information. If you have hired a lawyer, he or she may continue to assist you if the case is returned to the BVA. Q. Do I still need a lawyer to represent me after a remand? A. This decision is strictly up to you. You may find it helpful to have someone to assist you with the remand process. If your lawyer does not continue to help you, you should contact a veterans service organization. They can help you find a lawyer or an experienced person to assist you. You may have previously given a power of attorney to one of the veterans service organizations. If that is the case the BVA will consider them to be your representative unless you tell VA that you have found new representation. Q. Will the Pro Bono Program still help me after a remand? A. Lawyers in the Pro Bono Program are permitted to continue to work with you at VA, but they are not required to. Their agreement with the Program was to provide free representation at the Court, and they have been successful if you have received a remand of your case. Continuing representation by a lawyer in the Pro Bono Program may be for free or for a fee. If it is for a fee, the lawyer is required to enter into a written fee agreement with you and must send a copy of it to the BVA. Q. What if I disagree with the decision of the Court? A. You or your lawyer can ask the Court to reconsider its decision. You have 21 days from the date of the Court’s decision to do this. If your case was decided by a single judge, you can also ask for review by a panel (three judges) of the Court. And if your case was decided by a panel, you can ask for review by the entire Court (seven judges). If the Court rules against you on these requests, you may be able to appeal to a higher court—the U.S. Court of Appeals for the Federal Circuit. That Court has limited jurisdiction to review decisions of the Court of Appeals for Veterans Claims. Remember that neither the Pro Bono Program, nor the lawyers in the Program, are required to provide assistance to you beyond the U.S. Court of Appeals for Veterans Claims. Your lawyer can explain your options further. Q. Is assistance available to help pay the cost of a private lawyer? A. There may be financial assistance available under a federal law called the Equal Access to Justice Act (EAJA). This law permits an appellant to ask the government to pay his or her lawyer’s fees and expenses. You can only apply for EAJA fees if you are represented by a lawyer and if you win. “Winning” for EAJA purposes is sometimes complicated. Whether or not your case qualifies under EAJA depends on the result in your case and the reason the case was resolved in a particular way. If it seems your case could qualify under EAJA, your lawyer will submit an EAJA claim to the Court and to VA. An EAJA award does not reduce or otherwise affect the money that you might receive from VA. This money is not part of your VA benefits, nor is it intended to be compensation for you. It represents payment to the lawyer for the work that he or she did on your appeal. For this reason, the retainer agreement that you signed with your lawyer at the beginning of your case may contain a power of attorney that permits your lawyer to cash the EAJA check. Q. How do I contact the Pro Bono Program?
This website is intended to provide information to individuals who have an active appeal at the US Court of Appeals for Veterans Claims. It is based on the Veterans Consortium’s understanding of the Court’s Rules of Practice and Procedure as of the printing of this publication (2005). Those rules are subject to change, but an appellant will receive a complete set of current Rules of Practice and Procedure from the clerk of the Court. The current Rules of Practice are available at the Court of Appeals web site. |
