Robert: Hi, this Robert Chisholm from the law firm of Chisholm Chisholm & Kilpatrick.
With me is Zachary Stolz also from the law firm of Chisholm Chisholm & Kilpatrick and
today were going to be talking about the Court of Appeals for Veterans Claims.
Robert: Zach, what is the Court of Appeals for Veterans Claims?
Zach: The Court of Appeals for Veterans Claims is the federal court that is in charge of
making sure that VA follows the law when it makes decisions in veterans disability compensation
claims.
Robert: So, can any veteran just immediately appeal their denial to the court?
Zach: No.
The court exists at the end of the process so a veteran would have to have filed his
or her claim at the Regional Office, worked its way up through the Board of Veterans' Appeals
and then the court oversees what the Board of Veterans' Appeals does.
Robert: So, if I understand it correctly then the court reviews the final action or the
final decision from the VA?
Zach: That's right.
Robert: The court is not part of the VA and is that important to the process?
Zach: It's very important.
The court is not part of VA which means that it does not have a bias towards VA and can
give a better and a fresh look at his or her claim when it comes to them.
Robert: Can you tell us a little bit about the process in court?
What happens?
So, for example if a veteran has been denied, can they add new evidence once the case goes
to court?
Zach: They can't add new evidence.
The process is once you appeal from the Board to the court, the record is closed off, you
can't add any new evidence and the Court of Appeals for Veterans Claims will assign a
judge to the case and the judge will read briefs both from the Department of Veterans
Affairs and from the veteran and the veteran's attorney and then they will make a decision
on the case.
Robert: Can you tell us on average how many cases we represent in the Court of Appeals
for Veterans Claim each year?
Zach: Chisholm Chisholm & Kilpatrick represents around 1500.
Robert: Does a veteran whose claim has been denied by the Board need an attorney in court?
Zach: You're not required to have an attorney in court but counsel who has a little bit
of experience or experience the way CCK has experience with the court, it can help them
out a lot.
Robert: Does the VA have someone representing their interest in the court?
Zach: Yes, VA is represented by attorneys at that level.
Robert: Okay.
So, do you think it's a good idea for a veteran to go to court and not have counsel?
Zach: I think that is a bad idea.
Robert: Okay.
Zach: I think that once you go to the Court of Appeals for Veterans Claims, if the government
has an attorney, I think the veteran should have an attorney.
Robert: Some veterans understand that the system at the VA level is non-adversarial,
can you explain what non-adversarial means?
Zach: At the VA system, non-adversarial means that VA is supposed to help the veteran with
his or her claim by going out and getting medical evidence, by ensuring that their record
is complete, by asking questions that are supposed to facilitate making sure that the
claim-- that the proper claim gets granted.
Essentially, non-adversarial means VA is there to help the veteran out through the process.
Robert: And does that non-adversarial system change once you get to court?
Zach: Yes.
Once you file an appeal at the court, VA has an attorney at that point and the veteran
is now in an adversarial system where VA no longer is there to help the veteran.
VA is there only to represent its own interests.
Robert: So, Zach what does a win look like in the Court of Appeals for Veterans Claims?
Zach: Nine times out of ten, a win at the Court of Appeals for Veterans Claims is the
court finding that the Board committed a legal error and the court will then order the Board
to correct that legal or procedural error.
Generally, that is in favor of the veteran.
It will be a favorable finding for him or her and will help them out back at the Board
of Veterans' Appeals level.
Robert: Does the process after you've been to court where it's adversarial then become
non-adversarial when it goes back to the Board of Veterans' Appeals on remand?
Zach: It does.
Once you get out of the Court of Appeals for Veterans Claims and you're back at the Board,
the Board is supposed to again start helping the veteran.
Robert: And can one add evidence to the record once the case is back to the Board?
Zach: Yes.
Robert: So it gives you the chance to add more things to hopefully then win the claim?
Zach: In addition to that, you have a court order already telling the Board of Veterans'
Appeals that it erred.
So, not only can you add new evidence but you also have something helpful from the court
to help the Board move along and make the right decision.
Robert: Does the court ever actually award benefits like reverse a decision say, "You're
entitled to say a 10% or a 20% rating," can that happen?
Zach: Yes.
The court can do that and the court has the power to reverse the Board's decisions.
It would be rare for the court to assign a rating at that level.
It would primarily reverse the Board's erroneous finding and tell it to award the correct rating.
But yes, reversals do happen at the Court of Appeals for Veterans Claims.
Robert: So, is there different kinds of decisions that the court makes, some are single judge
and some are precedential, can you tell us a little bit about the difference between
the two?
Zach: The court is authorized to have single judges make decisions and those don't affect--
those only effect the individual veteran in the case but occasionally the court convenes
a three-judge panel that can issue a precedential decision that would have an effect on the
entire disability compensation system.
Robert: If the Court of Appeals for Veterans Claims denies the appeal, is that the end
of the road for a veteran?
Zach: It's not.
There is another court that sits above the Court of Appeals for Veterans Claims, it's
called the Court of Appeals for the Federal Circuit.
It is also in Washington, DC.
It can address pure questions of legal error.
It has a very limited jurisdiction to review the court which makes the CAVC vital and very
important and probably the most important court for most veterans but there is a higher
court that makes sure that the CAVC follows the law.
Robert: And does our firm handle cases in the Federal Circuit as well?
Zach: We do.
Robert: And can you tell us about a case, maybe the AZ case, AY case that you handled
in the Circuit and what that was about?
Zach: That case was about military sexual trauma.
It dealt with the types of evidence that the Board of Veterans' Appeals was able to examine
in a case of an accusation of military sexual assault.
It came down very favorably for the veteran and ensured that VA has to look at cases of
military sexual trauma in lights more favorable to the veterans.
Robert: And that was a case that went to the Court of Appeals for Veterans Claims, the
veteran lost there, the case was then appealed to the Federal Circuit and the Federal Circuit
essentially announced a new rule if you will of how to make decisions in military sexual
trauma cases that impacted the whole system.
Zach: That's right.
It was based on a reading of the relevant regulation and the Court of Appeals for the
Federal Circuit clarified what that regulation meant and clarified what it truly meant was
to be helpful for veterans.
Robert: Zach, thank you for your time this morning.
This is Robert Chisholm from Chisholm Chisholm & Kilpatrick and Zach Stolz from Chisholm
Chisholm & Kilpatrick.
Thank you.
Zach: Thanks.