05 Sep Appealing an Appeal
If an appeal is denied by the BVA there are alternatives that can be taken if the veteran is still convinced their case has importance.
It is possible to:
- Request that the board reconsider
- Request that the local VA regional office reopen your appeal
- Appeal the board’s decision to the U.S. Court of Appeals for Veterans’ Claims.
Motion to reconsider
A motion to reconsider an appeal can be written if it is possible to validate that the board has performed an error. An official form for this motion does not exist. Checking with a representative for guidance during this time is advisable if a representative is available. They can also provide help in organizing a motion to reconsider.
In the case that a veteran would like to file a motion to reconsider, they can send their letter to the BVA:
Board of Veterans’ Affairs,
810 Vermont Ave., NW,
Washington, DC 20420
If a motion to reconsider is applicable to you, make sure you can provide evidence that the board made a mistake regarding a fact in the case or a law and that had this fact or law been taken into consideration, the outcome would have been different. Do not request a motion to reconsider if you subjectively disagree with the board but do not have evidence to support your opinion.
Reopening an appeal
The only way that a veteran can request for a VA regional office to open their appeal is if they can contribute wholly new information relevant to the case—that is, new information that was not presented the first time. The VA is then responsible for whether or not the new evidence can stand during a reevaluation with the BVA.
An example of new information in a case would be an appeal being denied because the VA decides a discharge characterization to be under dishonorable conditions and a veteran convinces the Discharge Review Board that the characterization was wrong and they change it. If a benefit was denied because of the characterization, then this change constitutes new evidence.
Reopening a case with the VA regional office kick starts the procedure of appeals from the beginning.
For more info, go to: https://va.org/lawyer-help/
U.S. Court of Appeals for Veterans’ Claims
The U.S. Court of Appeals for Veterans’ Claims is an independent federal court, unrelated to the Department of Veterans’ Affairs, and taking an appeal here is the last alternative if denied. Appealing to the Court of Appeals for Veterans’ Claims is only acceptable BVA denies some or all of a veteran’s benefits. It is not possible to appeal to a BVA decision to remand a claim.
To make this appeal, a veteran must file a Notice of Appeal with the court within 120 days of when the board’s decision was sent to them.
If, within the 120-day window, a motion to reconsider with the BVA is denied, there is an extra 120-day duration in which to file the Notice of Appeal with the court. This time frame starts on the date the BVA mailed their decision to deny a motion to consider. For more information on the motion to reconsider read the “Motion to reconsider” above.
Filing the court appeal
Send a Notice of Appeal with name, address, phone number, and date of the BVA decision to:
Clerk of the Court
U.S. Court of Appeals for Veterans’ Claims,
625 Indiana Ave., NW,
Washington, DC 20004
A Notice of Appeal must be mailed or faxed to 202-501-5848 since the court doesn’t accept electronic submission.
Having a lawyer
It could be advantageous to have a lawyer present although it is not mandatory. A representative that can support a veteran in federal court might help the gravity of a case, especially since the VA will have a lawyer as well.
Though it is not advisable, if you wish to represent yourself, helpful information can be found at the court website
The clerk of the court maintains a list of attorneys acknowledged to have practiced in front of the court with an interest in representing veterans with denied claims. The Court of Appeals for Veterans’ Claims is not required to provide a veteran with an attorney, so contacting individuals from the list of attorneys can help. Some attorneys charge a fee while others charge only if the case is won.
A Congress funded Veterans’ Consortium Pro Bono Program was put into motion once the difficultly in proceeding a court case without a lawyer was recognized. The Veterans’ Consortium Bono Program operates as a nonprofit organization helping veterans find lawyers willing to represent them without charging a fee.
The Veterans’ Consortium Pro Bono Program is available for contact through their website www.vetsprobono.org or by calling 888-838-7727.