Appealing the Appeal of Your Veterans Benefits Claim
If your claim for veterans benefits is denied, you can appeal to the VA regional office and even to the Board of Veterans Appeals (BVA) if needed. If the Board of Veterans Appeals denies your appeal, you’re not dead in the water yet.
If you still believe that you’re entitled to the benefit(s) you claimed, you have three options: Ask the board to reconsider, ask the local VA regional office to reopen your appeal, or appeal the board’s decision to the U.S. Court of Appeals for Veterans Claims.
Motion to reconsider your veterans benefits claim
If you can demonstrate that the board made an obvious error of fact or law in its decision, you can file a written motion to reconsider your appeal. If you were represented at the time of the decision, you may want to consult with your representative for advice about whether you should file a motion (and for assistance in preparing one). There’s no specific VA form for this action.
If you do file a motion to reconsider, it should be sent directly to the board, not to your local VA regional office. Send the motion to Board of Veterans Appeals (014), Department of Veterans Affairs, 810 Vermont Ave., NW, Washington, DC 20420.
You should not submit a motion to reconsider simply because you disagree with the BVA’s decision. You need to show that the board made a mistake in fact or law and that the board’s decision would have been different if the mistake had not been made.
Reopening an appeal to your veterans benefits claim
You can request that your VA regional office reopen your appeal, but only if you can submit new and material evidence. To be considered new and material, the evidence you submit must be information related to your case that wasn’t included in the claims folder when your case was decided.
For example, if your appeal was denied because the VA considers your discharge characterization to be under dishonorable conditions, and you then persuade the Discharge Review Board to change your discharge characterization or discharge reason, this would be an example of new and material evidence.
If the VA regional office agrees to reopen your case, this starts the whole appeals process all over again.
Appealing veterans benefits claims to the U.S. Court of Appeals
Taking your appeal to the U.S. Court of Appeals for Veterans Claims is your final option. The court is an independent federal court that’s not part of the Department of Veterans Affairs. You may appeal to the court only if the BVA has denied some or all of your benefits. You may not appeal a BVA decision to remand your claim back to the VA regional office.
Normally, to appeal a BVA decision, you must file the Notice of Appeal with the court within 120 days from the date the board’s decision is mailed.
If you filed a motion to reconsider with the within the 120-day time frame and that motion was denied, you have an additional 120 days to file the Notice of Appeal with the court. This 120-day period begins on the date the BVA mails you a letter notifying you that it has denied your motion to reconsider.
Filing your court appeal
You must file your appeal by mail or by fax. The court doesn’t accept electronic submissions. Send your Notice of Appeal, including your name, address, phone number, and the 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, or fax it to 202-501-5848.
Deciding whether or not to be your own lawyer
Although you don’t have to have a lawyer to file an appeal, remember that this is a full-blown federal court, and it requires certain forms and has certain legal ways of doing things, just like any other court. Since the VA is going to have its lawyer there to argue its side of the case, if you decide to represent yourself, you’ll be at a distinct disadvantage.
There is an old lawyers’ saying that a man who represents himself has a fool for a client.
If you do decide to represent yourself, at the very least, take a thorough look at the court’s website.
The Court of Appeals for Veterans Claims isn’t a criminal court, so the court can’t appoint an attorney to represent you. However, the clerk of the court maintains a list of attorneys who have been admitted to practice before the court and have expressed an interest in representing veterans who want to appeal denied claims.
Although most of these lawyers charge a fee to represent clients, some of them will collect a fee only if you win your case or will accept the case without charging a fee.
In addition to the court’s list of attorneys, Congress, recognizing the difficulties veterans and their dependents face in proceeding in a court case without a lawyer, has funded the Veterans Consortium Pro Bono Program. This program is a private, nonprofit organization that helps find lawyers who will represent veterans before the court free of charge.