so
hi everyone and welcome to another edition of cck live my name is christian mctarnigan and
today i'm joined by amy odom and we're going to discuss four reasons why veterans should appeal
to the cabc instead of taking the supplemental claim lane or filing a supplemental claim
so i'm just going to do a quick overview of appeal options so veterans in the ama system have several
options when it comes to appealing an unfavorable va decision this is different than some of these
talks that we've had about the legacy system so um amy do you want to get into a little bit about
this specific appealing to the board option or lane if you will in the ama sure so under the ama
veterans and and claimants have the option to appeal to the board of veterans appeals
which is the appellate body of the united states department of veterans affairs this just means
that it is the absolute last word from the va on a claim for benefits and it's not bound by
any decision that the regional office has made so it can overrule a decision by the regional office
so when you get a decision from the regional office if you're not happy with it you have
a number of choices under the ama system you can submit a supplemental claim for the claim
disability you can request higher level review or you can file a notice of disagreement and ask for
appellate review by the board of veterans appeals so essentially when you have a board denial the
question that we're going to cover is what do you do next we're going to talk about whether you want
to either go to the supplemental plane lane or appeal to the court of appeals for veterans claims
and you can find more information about these options on our blog but in the meantime christian
can you tell us a little bit about the court of appeals for veterans claims absolutely so uh i'd
like to think that i know a little bit about this it's literally the only thing i've ever done in
my practice of law uh so the united states court of appeals for veterans claims that's a mouthful
this is a veterans practice so there's an acronym uh the cavc or the court it's a federal appellate
court that's located in washington d.c that hears appeals of claimants veterans and their
dependents who are unsuccessful before the board that you were just talking about amy so the cabc
has exclusive jurisdiction to review all final board decisions so once you get to the cevc and
you've appealed that board decision the court can do a few things it can affirm the board's
decision which means in their opinion there weren't any legal or factual errors or it can
vacate what's called vacate and remand the case uh back down to the board so vacate basically means
uh you know a fancy way to say a race is the board's decision that part of the board decision
and remands just means sends it back down to the va to the board which like you said is the final
adjudicative body the final decision maker at va so also just note quickly in extremely
rare cases the cavc will reverse uh either a factual finding or reverse the denial in an
order va to grant the benefit but you know that's that doesn't really happen very often it's a very
small percentage of cases where that's the remedy so like i said when the court vacates
and remands the decision it means the court has found that there's a legal error and then they
send it back down to the board with basically an explanation of what legal error was made
and orders the board to do it again to do it right and what i usually will tell my clients is it's
another shot at getting a chance at those benefits and you have the benefit of a federal court order
telling the board what it did wrong and what it has to do next on remand so we're talking
about appeals to the court and we're talking about supplemental claims so you want to talk a little
bit about filing a supplemental claim amy after a board denial sure so that's option b right if
you have a board denial you don't want to go to the court for some reason you can always get va
to look at that that claim again the beauty of the va system is that nothing is ever really final
a denial can be overturned um at the board or the the court or you can ask the court the va to take
another look at it but if you file a supplemental claim you have to have new and relevant evidence
the va is not going to look at your claim again unless you submit new and relevant evidence if
you do have new and relevant evidence then va will reopen and readjudicate the claim so what
is new and relevant evidence well new means it hasn't previously been before the decision makers
so if you've already submitted an opinion from your doctor you can't then resubmit that
with your supplemental claim and expect the va to reconsider the claim or readjudicate the claim
that's not new evidence but if you have an opinion from a new doctor
a different doctor that is also in your favor that would be new evidence because there is no prior
evidence of that doctor's opinion relevant means it has to be somehow relevant to the claim um
what exactly that means under the ama is is still being explored remember the ama is relatively new
it's only about and been in effect for two years now but at the very least it has to be relevant or
um speak in some way to the claim the disability or whether there was a connection between the
disability and service or about something that happened in service also you have to file this
supplemental claim along with the new and relevant evidence or at least a an intent to file
a supplemental claim within a year so you can't decide five years after you receive the board's
decision that you're going to go ahead and take another shot with va with the supplemental claim
and expect that you'll have the same effective date now you can of course you can always refile
five years down the line whenever you want to but you will lose the effective date of the
initial claim if it's ultimately granted unless you file within the year of the board's denial
you can actually file a supplemental claim to rating decisions and cavc decisions too so imagine
you get a board decision that you're unhappy with you decide to appeal rather than going to
the supplemental claim lane and you lose at the core you can still file a supplemental claim and
protect the effective date of that initial claim if you do file within a year the supplemental
claim within a year of the court's decision along with the new and relevant evidence if you
do decide to go the supplemental claim route you must make sure that you have the appropriate form
va will not accept um just a written letter asking it to reconsider your claim based on the new and
relevant evidence you must submit this proper form and that's va form 20-995 i'm sorry 20-0-995 and
you can find that on va's website um and there's no limit on the number of supplemental claims you
can submit if you get a board decision you're unhappy with you file a supplemental claim it's
still denied you can file another supplemental claim and another and another there's no limit
um but you do of course need to come up with that new and relevant evidence if you hope to prevail
so christian what kind of things should people consider in determining whether to go to the
veterans corps or file a supplemental claim right so you know like anything it's very
situationally dependent uh based on the specific facts of the case you know one appeal route may
be better than the other but um you know appealing to the cabc is generally the best most efficient
choice for for veterans and we think that's the case for a couple of reasons first and i know that
this is important to a lot of my clients you get your day in court by filing an appeal to the cevc
the veteran the claimant the appellant is taking legal action against the secretary
of the u.s department of veterans affairs who will be the appellate in once the case
transferred to the cabc it literally becomes a federal case meaning it's separate and apart
from the va it's no longer under va's jurisdiction and you're having federal judges decide um you
know whether you get another uh chance back at the board or not um and the court also operates
differently from from va you know the court views these cases objectively um and that it's better
positioned to evaluate the arguments made by each party in in sort of an objective fair way
so what else are you thinking amy what are the other potential benefits to going to the cavc
well what i think is the major benefit of going to the cavc is that you don't have to
come up with any new evidence it can be really hard to get the kind of evidence that you need
to to be able to prevail in a supplemental claim as we just kind of talked about it has to be new
and relevant so that means potentially if the only question remaining in your case is whether your um
disability is related to asian orange exposure in vietnam you have to have medical evidence in
order to um prevail on that issue and so probably that means to be relevant you have to be able to
go out and get a medical opinion on that issue and that can be really hard for veterans to do so
that's a major benefit of going to court is that you don't have to come up with new and relevant
evidence to get somebody to take a look at your case and see if va is doing something wrong
the flip side of that is that you can't submit new evidence to the court the court is an appellate
court meaning it just reviews what the board did based on the evidence that was before the board at
the time of its decision it will not consider any new evidence that wasn't before the board even if
it predates the board's decision in most cases um so the bottom line is if you can go out and get
new evidence that's relevant to your p your your claim then maybe the supplemental claims lane is
right for you but the vast majority of claimants are not able to do that and those claimants
their best bet is to go to the court and get a correction of the va's error right so if i
might jump in with another benefit that i think is or a benefit of going to the cvc amy is that
you have the option to ask for review by multiple judges so like you talked about before amy there
is an option after uh an unfavorable decision from the court uh to file some new and relevant
evidence and supplemental claim one year after however you have avenues if your first judge
doesn't really necessarily disagree doesn't necessarily agree with your position so decisions
at the cabc normally come from one judge a single judge but there are certain situations where
more than one judge can be involved um complex or or presidential cases for example are more likely
to be considered by multiple judges so if you were to get an unfavorable decision from a judge
you can ask for the judge to reconsider or you can also ask for what's called panel review which is
when multiple judges would consider the case um similar to like i was talking about before the
reversals panels are are pretty rare when you're talking about the percentage of overall cases
but those are additional options that you have when you get to the court
and those the thing that's interesting about panel decisions is those are presidential
decisions and so that would be a decision that um impacts and affects how all of
veterans are are afforded or how all veterans are treated with the rule that the court announces in
the presidential decision it creates case law that needs to be followed in all cases
yeah christian and i would say another reason that i think
going to the court as opposed to the supplemental claim lane um might be a good
uh a good um option for some veterans is that it doesn't cost anything to go to the core at cck
veterans don't pay attorney's fees for successful appeals before the court and by successful appeals
i mean the court agrees with us that uh the va made some errors and their claim and sends the
case back for the va to fix those errors or in the very rare rare rare circumstances as christian um
alluded to uh the court reverses the the veteran or i'm sorry the va and orders the va to pay
the veteran benefits when we are successful at the court our attorney's fees for the time that
we spend working on the case it's covered by the equal access to justice act which is the federal
law that allows individuals small business and public interest groups to obtain representation
before the federal government at no cost in the in the event that the individual or
group is successful in that case we would ask the court to order the va to pay us attorney's fees
but that doesn't come out of any money that would be due and owing to the claimant if he or she were
to prevail back before the va on remand um this differs from bva appeals and supplemental claims
in that if a veteran has an attorney represent the veteran or the claimant before the board or
a supplemental claim then usually what happens is the attorney receives the contingent fee of a
percentage of the retroactive benefits that are recovered so this means that if a claimant is
awarded retroactive benefits based on eligibility stemming from a previous date in time then the
veterans advocate would receive a percentage of those retroactive benefits and that's not the
case with the court appeal at least at cck right so uh we hope this video has been helpful um you
know there are definitely certain situations that benefits a veteran to hire an advocate or attorney
to represent them in court for more information about choosing the right rep for your for your
case at the cabc check out our recent video on youtube about that subject and as always thank
you for tuning in and don't forget to subscribe to our channel for more veterans news tips
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