Your Appeal to the U.S. Court of Appeals for Veterans Claims

The U.S. Courts of Appeals for Veterans Claims was established by Congress

in 1988 to hear appeals of individuals whose claims have been denied by the

Board of Veterans' Appeals (BVA). The BVA is the final level of appeal

within the Department of Veterans Affairs (VA). The Courts of Appeals for

Veterans Claims is not part of VA.

There are two parties to every appeal to the Court. The person to every

appeal to the Court. The person who has filed the appeal is called the

"appellant." The appeal is filed against the Secretary of the Department of

Veteran Affairs, who is called the "appellee." Occasionally, at the Court's

request, other groups or individuals provide comments on a particular issue

or point of law. Such an individual or group is know as an "amicus" (a

"friend of the court").

Most appellants do not have an attorney when they initially file their

appeal with the Court, and many attempt to handle their own appeals.

However, unrepresented appellants are often unfamiliar with Court rules and

procedures and with the evolving legal doctrines concerning veterans

benefits. This puts them at a disadvantage. In 1992, Congress approved the

establishment of a program to help appellants at the Courts obtain an

attorney to represent them without charge.

The Veterans Consortium runs the resulting Pro Bono Program at the Court. It

is a cooperative effort by tour organizations--The American Legion, the

Disabled American Veterans, the National Veterans Legal Services Program,

and the Paralyzed Veterans of America. The Consortium recruits and trains

volunteer attorneys to help needy appellants with their appeals at the Court

of Veterans Appeals.

Although you are not required to have an attorney represent you during your

appeal, it's in your best interests. The Court has specific Rules of

Practice and Procedure that must be followed. An attorney can guide you

through the system and help you make the best arguments for your appeal. In

addition, the interests of the Secretary of Veterans Affairs will be

represented at the Court by one of many VA attorneys. If the Secretary has

his attorney. (The Court also permits qualified non-attorney practitioners

to represent appellants before the Court.)

Neither the Court nor VA will find an attorney for you. The Court is there

to decide cases, not to represent you or to find an attorney for you. You

have filed an appeal against VA, and VA is only going to represent itself at

the Court. If you want an attorney, it is up to you to take the initiative

to find one or to contact an organization that can help you find an

attorney.

This brochure provides information about how you can obtain legal assistance

for your appeal to the Court and, specifically, the services provided by the

Veterans Consortium Pro Bono Program.

1. Finding an attorney

Q. Where do I find an attorney?

A. There are several ways to find an attorney to represent you. You are the

client, and you have the right to choose your own attorney or representative

(unless you have been declared incompetent to manage your own affairs). Here

are some ways to find an attorney:

You, your friends, or your relatives may know of an attorney who can help in

your case. Any attorney you hire should be familiar with the law of veterans

benefits or be willing to study that law to become familiar with it.

You can get a list of attorneys interested in representing veterans from the

Clerk of the Court. If you filed your Notice of Appeal without the help of

an attorney, the Court will have sent you a list of private attorneys who

are admitted to practice before the Court.

You can contact the National Organization of Veterans' Advocates (NOVA).

This is an association of representatives interested in helping veterans

obtain their VA benefits. You can contact NOVA at:

National Organization of Veterans' Advocates

Advocate Referral Service

P.O. Box 2099

Topeka, KS 66601

(800) 810-VETS

You can check with your local veterans service organization (VSO). Several

of these organizations have attorneys (or nonattorney practitioners

authorized to represent appellants before the Court) on their staffs who

practice full-time before the Court.

You can write to the Veterans Consortium Pro Bono Program and ask them to

help you find an attorney to represent you. If you meet the financial

eligibility guidelines and are not already represented by an attorney, the

Program will evaluate your case. If the Program determines that there is an

issue that could be pursued, then the Program will provide you with a pro

bono (free) attorney. The address for the Pro Bono Program is:

The Veterans Consortium Pro Bono Program

Case Evaluation and Placement

601 India Ave., NW, Suite 1010

Washington, DC 20004

(202) 628-8164

(888) 838-7727 (Toll-free)

Q. Will I have to pay for an attorney?

A. It depends. A private attorney can take your case for a fee or for free.

A fee can be a definite amount which you and your attorney agree on, or it

can be a contingency fee (a percentage of any benefits you eventually

receive from VA). Any fee agreement must be filed by your attorney with the

Court. If you are are represented by a VSO or through the Veterans

Consortium Pro Bono Program, those services are provided without any charge

to you.

Q. How do I ask the Veterans Consortium to help me find an attorney?

A. If you have filed an appeal at the Court without representation, and if

you are unable to obtain an attorney within 30-45 days after you receive the

list of attorneys from the Court, then you will receive information about

the Pro Bono Program. You complete the two forms and mail them to the Pro

Bono Program. The "Retainer and Power of Attorney" gives the Pro Bono

Program you permission to read your claims file at VA, so they can evaluate

your case. "the Financial Disclosure" form gives the Pro Bono Program

information about how much money you presently earn, so they can determine

if you meet the Program's financial eligibility guidelines.

If you meet the eligibility guidelines, the Pro Bono Program will review

your case. They will then either (1) refer (1) refer the case to an attorney

who will provide pro bono representation for the appeal before the Court; or

(2) advise you of problems with the case, why an attorney is not being

provided, and any options you can try. There is no cost to you for this

evaluation and referral.

2. As Your Case Progresses

Q. How do I keep track of my case after I file my appeal?

A. When you file your Notice of Appeal, the Clerk of the Court will place

your case on the Court's docket (the list of pending cases) and assign a

docket number. The first two digits of the docket number are the year (96,

97, etc.) in which your appeal was filed. The last several digits are

assigned in the order in which appeals are received during the calendar

year. Thus, a docket number looks like "95-1" or 96-574." This docket number

will be different from your VA claim number, or your Social Security number.

If you have an attorney or other representative, that person will handle all

communication with the Court. You should not contact the Court or VA

directly about your court case once you've obtained representation. If you

do not have an attorney or other representative, whenever you write to the

Court about your appeal, you must include your docket number on your letter

and on any documents you send to the Court.

Q. What does an attorney do for me?

A. An attorney or representative will assist you with your appeal at the

Court. Your representative will be your agent in meetings, telephone

conversations, or discussions with either the Court's office or with the

attorney(s) for VA. Your representative will assist in the preparation of

the administrative record that the Court will review when it decides your

appeal. Your representative will also review the law and regulations

governing the issues in your appeal and will prepare motions and briefs

(legal documents explaining the BVA decision was incorrect) on your behalf.

Your representative may also be asked by the Court to make an oral argument

to the Court about certain issues in your appeal.

Q. What do I do if I have questions?

A. If you have an attorney or other representative, you ask him or her any

questions you may have concerning your case. That's why he or she is your

lawyer or representative. You should not contact the Court or VA directly;

your attorney or representative will do that for you.

If you have returned the forms mentioned above to the Veterans Consortium

Pro Bono Program, you can contact the Pro Bono Program directly with

questions about your case. you can contact the Pro Bono Program any time

after you have returned the forms, even if you have not been informed of the

results of their review of your case, during the often lengthy period of

time your case is pending before the Court.

If you do not have an attorney or representative and have not asked the Pro

Bono Program to review your case, and you have a question regarding the

status of your appeal or how to follow the Court's Rules of Practice and

Procedure, you can contact the Clerk of the Court at (202) 501-5970 or toll

free at (800) 869-8654. The Clerk's Office will answer questions about

procedures and about the status of your appeal only. The Clerk's Office will

not give you legal advice nor predict how or when your appeal might be

decided.

3. The Court's Decision

Q. What happens if the Court rules in my favor?

A. It is important to understand how the Court decides an appeal. If the

Court believes you are correct, its usual action is to remand (send back)

your case to VA for further action. In very few cases does the Court

actually reverse the decision of the BVA or substitute a decision of the BVA

or substitute a decision of its own for that of the BVA. Even in those rare

cases where the Court decides that benefits are due to the appellant, VA

must determine how much money is actually owed (although you could appeal

again if you believe that VA didn't pay you all the money that you believe

you should have received).

Q. If my case is remanded to the BVA, do I still need an attorney and will

the Pro Bono Program attorney continue to assist me?

A. If your case is remanded to the BVA, the BVA can conduct a further review

of your claim, or the BVA may remand the case back to the VA regional office

for further development.

If you have an attorney, your attorney may be able to continue to assist

you. Attorneys participating in the Veterans Consortium Pro Bono Program are

encouraged to continue to work with the appellant, but they are not required

to do so. And since the case is sent back to the BVA, an attorney is allowed

to enter into a fee agreement with the client, if the client agrees. If your

attorney is not able to assist you when your claim goes back to the BVA or

possibly to your local VA regional office, you should contact one of the

VSOs to see if they will assist you. If you had given a Power of Attorney to

one of the VSOs, VA will still consider that VSO to be your representative

when your case is returned to the BVA for further action, unless you obtain

a new VSO to assist you.

Q. Suppose I disagree with the decision of the Court?

A. You or your attorney can ask the Court to reconsider its decision against

you; you have 21 days from the date of teh Court's decision to do this. If

your case was decided by a single judge, you can also ask for review by a

panel (three judges) of the Court. And if your case was decided by a

three-judge panel, you can ask for review by the entire Court. If the Court

rules against you, it may be possible for you to appeal to a higher

court--the U.S. Court of Appeals for the Federal Circuit. That Court has

limited jurisdiction to review decisions of teh Court of Veterans Appeals.

You should note that the Veterans Consortium Pro Bono Program, and the

attorneys participating in the Program, are not required to provide

assistance to you beyond the U.S. Court of Veterans Appeals.

Q. What is the Equal Access to Justice Act?

A. The Equal Access to Justice Act (EAJA) is a federal law that permits an

appellant, in certain instances, to ask the government to pay his or her

attorney's fees and expenses. An EAJA award does not reduce or otherwise

affect my money that you might get ultimately from VA. Your case may qualify

under EAJA, depending on the result in your case and the reason why the case

was resolved in a particular fashion. You cannot apply for EAJA fees unless

you are represented by an attorney. If it appears that your case qualifies

under EAJA, your attorney will submit the EAJA claim to VA. If your attorney

submits an EAJA claim and it meets the requirements of the law, the check

issued by VA will usually be made payable to both the attorney and you.

However, the check represents payment to the attorney for work that he or

she did for you on your appeal; it is not part of your VA benefits and it is

not intended to be compensation for you. For this reason, the Retainer

Agreement that you signed with your attorney at the beginning of your case

may contain a power of attorney that permits your attorney to negotiate

("cash") the EAJA check.

An EAJA award will most likely be approved and paid before you receive your

claimed benefits from VA. This is because EAJA is paid by VA for work that

your attorney did at the Court and the amount can be established fairly

quickly. Your claim for your VA benefits, however, has to be returned to VA

for VA to decide whether any benefits can be paid (and, if so, in what

amount).

This brochure is intended to provide information to individuals who have an

active appeal at the U.S. Court of Veterans Appeals. It is based on the

Veterans Consortium's understanding of the Court's Rules of Practice and

Procedures as of the printing of this publication (Fall 1996). Those Rules

are subject to change, but an appellant will receive a complete of current

Rules and Procedures from the Clerk of the Court.