““We are dealing with veterans, not We are dealing with veterans, not procedures -- with their problems, not ours.” procedures -- with their problems, not ours.”

Omar Bradley, 1947Omar Bradley, 1947 Administrator Administrator

U.S. Veterans Administration U.S. Veterans Administration

VA BENEFITS VA BENEFITS & &

THE APPEALS PROCESSTHE APPEALS PROCESS

Kenneth A. WalshKenneth A. WalshDeputy Assistant General CounselDeputy Assistant General CounselVA Office of the General CounselVA Office of the General CounselVeterans Court Litigation GroupVeterans Court Litigation Group

JUDICIAL REVIEW & VA’S ADJUDICATION JUDICIAL REVIEW & VA’S ADJUDICATION PROCESSPROCESS

Post VJRA of 1988

Veteran Files Claim

Regional Office (VBA) •Develops Evidence •Adjudicates Claim

Board of Veterans’ Appeals (BVA)•De novo review of evidence•Adjudication independent of VBA

Veterans Court•Article I Court •Independent of VA

Further Review•Federal Circuit •Supreme Court

No Appeal

Veteran Files Claim

Regional Office (VBA) •Develops Evidence •Adjudicates Claim

Board of Veterans’ Appeals (BVA)•De Novo Review of Evidence•Secretary’s Final Adjudicator•Independent of VBA

Pre-1988

RO Decision

• 1 yr from date of RO decision to file NOD• VA issues SOC explaining basis of decision• 60 days from SOC to file “substantive appeal”

(or remainder of 1 yr from date of decision)

BVA Decision

• 120 days to appeal to CAVC• Motion for BVA recon (no time limit)• Motion to vacate (no time limit)

VETERANS COURTVETERANS COURT

• Article I Court Article I Court – 9 Judges, 13-15 Year Terms – Appointed by President, confirmed by Senate

• Appellate, not trial court Appellate, not trial court • 25 vols, 25 vols, Veterans Appeals ReporterVeterans Appeals Reporter• Exclusive jurisdiction over BVA decisions Exclusive jurisdiction over BVA decisions • In FY13, more than 3,500 docketed appealsIn FY13, more than 3,500 docketed appeals• 38% pro se when NOA filed38% pro se when NOA filed

SOURCES OF VETERANS LAWSOURCES OF VETERANS LAW• Statutes – Title 38, U.S. Code Statutes – Title 38, U.S. Code • Regulations - Title 38, Code of Federal Regulations Regulations - Title 38, Code of Federal Regulations • VA General Counsel Opinions VA General Counsel Opinions • VBA VBA Adjudication Manual Adjudication Manual – M21-1? Maybe – M21-1? Maybe • Board of Veterans’ Appeals Decisions? No! Board of Veterans’ Appeals Decisions? No! • Judicial Interpretations – Judicial Interpretations –

– U.S. Court of Appeals for Veterans Claims. – U.S. Court of Appeals for the Federal Circuit.

• Other Judicial Interpretations? Unlikely Other Judicial Interpretations? Unlikely • Veterans Court’s Veterans Court’s Rules of Practice & ProcedureRules of Practice & Procedure

THEMES IN VETERANS LAWTHEMES IN VETERANS LAW• Relationship Between VA and Veteran Relationship Between VA and Veteran

– Within Agency Adjudication, Paternalism • Non-Adversarial, informal process• Ties go to the “runner” (i.e., the Veteran) • Duty to Notify and Assist in Developing Evidence • Liberal Pleading Requirement

– Judicial Review, Adversarial • Elements of a Claim Elements of a Claim

– Veteran Status – Existence of a disability – Nexus between disability and service – Degree of disability (VASRD) – Effective date of compensation

Service Connection

Rating, or Evaluation

APPEAL EVENTS/MILESTONESAPPEAL EVENTS/MILESTONESDevelop RecordDevelop Record• File Board Decision (OGC) File Board Decision (OGC)

– 30 days after Docketing • Record Before the Agency (OGC) Record Before the Agency (OGC)

– 60 days after Docketing – Scanned images – CD-Rom – Whole claims file

• Dispute? (Veteran) Dispute? (Veteran) – Within 14 days of RBA – Goal – Resolve dispute – Rule – Was document in claims file

for BVA consideration? • Record of Proceedings (OGC) Record of Proceedings (OGC)

– 14 days after briefing concluded – Only documents cited by parties

Argue AppealArgue Appeal• Briefing Schedule Briefing Schedule

– Appellant’s Brief – 74 days after RBA

– Appellee’s Brief – 60 days after opposing brief filed

– Reply Brief – 14 days after Secy’s Brief filed

– Extensions (max. 45 days)

• Court Orders Court Orders • Oral Argument Oral Argument

QUESTIONS?QUESTIONS?

KENNETH A. WALSHVA OFFICE OF THE GENERAL COUNSEL

Kenneth.walsh@va.gov202.632.5987

www.va.gov