About your appeal... About your appeal... Answers to your questions about the U.S. Court of Appeals for Veterans Claims

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1 About your appeal... About your appeal... Answers to your questions about the U.S. Court of Appeals for Veterans Claims

2 Veterans Consortium Pro Bono Program You fought for us, now we ll fight for you. The Pro Bono Program is dedicated to providing every qualified veteran or their family with free legal representation before the U.S. Court of Appeals for Veterans Claims. Our services are 100% free. No one from the Pro Bono Program will ever ask you for money or any portion of your benefits. If you have a legally viable claim, qualify financially and you wish to have a lawyer represent you, we will provide a lawyer trained in veterans law completely free of charge. Consortium Partners Have you had your appeal of a claim for VA benefits denied by the Board of Veterans Appeals (BVA)? If so, you probably have the right to appeal that decision. The appeals process can be confusing. You may have plenty of questions: How do you file an appeal? Is there a deadline? Do I need a lawyer? How do I find one? The Veterans Consortium Pro Bono Program (Pro Bono Program) is dedicated to providing every qualified veteran and their family with free legal representation before the U.S. Court of Appeals for Veterans Claims. Since our creation by Congress in 1992, the Pro Bono Program has matched more than 3,600 veterans with lawyers to assist them with their appeals. We have recruited and trained almost If you have a legally viable claim 3,000 volunteer lawyers. and you wish to have a lawyer represent you, we will help Our services are 100% free. No one you find one completely free from the Pro Bono Program will ever of charge. ask you for money. In this brochure, we ll answer your questions about your claim and how to appeal it. We ve tried to break down each step in the appeals process, explain your options, define terms and guide you whether you are a veteran or a family member to the help you re looking for. If you can t find the answers to your questions in this brochure, please call us toll free at

3 Where do I begin? The appeals process can be daunting. Without a lawyer, it can be difficult. In this brochure, we ll guide you step-by-step through your questions about your appeal. Step by Step 1 Ste p You have 120 days from the mailing date of your BVA decision to file an appeal. You won t get an extension*, so act fast! Filing Your Appeal Why should I file an appeal? Step 2 Deciding To Hire A Lawyer Do I really need a lawyer? Step 3 Choosing The Pro Bono Program Is the Pro Bono Program right for my case?...8 Step 4 What To Expect How does the appeals process work?...12 GLOSSARY FORMS (Pro Bono Program Services Request Forms) *In rare cases, such as extended hospitalization, extensions may be granted. 1

4 STEP 1: Filing Your Appeal Why should I file an appeal? HOW TO FILE AN APPEAL 1. Go to the Court s website. (or call the Court at and request Forms 1 and 4). Your case isn t over after your claim has been denied. But what are your next steps? Here are some answers to your questions about appealing the Board of Veterans Appeals (BVA) decision. 2. Complete the Court s Form 1 Notice of Appeal. effective_sept_15_2011_-_form_1.pdf 3. There is a $50 fee to file. You can ask the Court to waive the fee by filing the Court s Form 4 Declaration of Financial Hardship. The U.S. Court of Why file an appeal? 4. Mail your completed form(s) to: Appeals for Veterans Even if the BVA has recently denied your claim for VA benefits, Clerk of the Court Claims is a separate, your case doesn t have to be over. You have the right U.S. Court of Appeals independent judicial to appeal the BVA s decision to the U.S. Court of Appeals for Veterans Claims body. It is NOT part for Veterans Claims, a special court for veterans and their 625 Indiana Avenue, N.W., Suite 900 families. The Court is a separate, independent body. It is Washington, DC of the VA. NOT part of the VA. In order to continue your benefit claim, Phone: you will have to file a separate appeal to that Court. Fax: (Note: Forms 1 and 4 must be attached IMPORTANT: How do I file an appeal? as separate PDF files if you file both at the same time.) Don t Delay! You only You don t need a lawyer to file your appeal. You can do it have 120 days from yourself, simply by filling out the Court s Notice of Appeal SPECIAL CASE: the mailing date of your Form. There s a $50 fee to file your appeal, but you can ask If you are getting close to the deadline, you can simply print your name, BVA decision Why to file an the Court to waive the fee by filing a Declaration of Financial Hardship Form. You may also request the forms from? address and telephone number on a piece of paper and write: I want to appeal. You won t get appeal my BVA decision dated. an extension* so the Court (see contact information on next page) or from don t delay! the Pro Bono Program. Then mail or fax that paper to the Court. (The postmark will be the filing date, so don t use FEDEX or UPS under these circumstances.) *Extensions may be granted in rare circumstances, such as extended hospitalization. File your appeal promptly to meet the 120 day deadline. 2 3 Don t forget to include Suite 900. If the Postal Service delivers your appeal to the wrong address, you can lose your chance to appeal!

5 STEP 2: Deciding to Hire a Lawyer Do I really need a lawyer? The appeals process can be very confusing. A lawyer can guide you through the system and help you make the best arguments for your case. There s no legal requirement to hire a lawyer for your appeal. But can you navigate the process on your own? And if you want a lawyer, how do you find one? Here are the answers to some common questions about whether to seek a lawyer for your appeal. Do I need a lawyer? There s no requirement to have a lawyer represent you with your appeal. However, your likelihood of success increases tremendously if you have one. If you wish, you can represent yourself. But you will be at a significant disadvantage (see below) without a lawyer. We strongly recommend that you take advantage of a lawyer s services, whether you choose a Pro Bono Program lawyer or a private lawyer. Why should I find a lawyer? The appeals process can be very confusing. A lawyer What will a lawyer do for me? If a lawyer assists you with your appeal, he or she will: Talk with the Court staff and VA lawyers for you Prepare paperwork for the Court Review laws and regulations relating to your case Prepare written legal arguments (briefs) explaining why the BVA decision was incorrect Ask the Court to hear an oral argument about your case (if appropriate) Attend meetings with the VA and Court lawyers about your case Keep you informed about the status of your appeal How do I find a lawyer? It s your responsibility to find a lawyer. Neither the Court nor the VA will help you. If you want a lawyer and you have a legally viable claim, the Pro Bono Program will refer you to a free lawyer who will assist with your appeal. Or, you may hire a private lawyer to handle your case. If you choose a private lawyer, make sure the lawyer is familiar with veterans law. I ve never heard of the Veterans Consortium Pro Bono Program? Who are you? We are a program created by the U.S. Congress in 1992 to assist veterans or their family members with their appeal before the U.S. Court of Appeals for Veterans Claims. can guide you through the system and help you make the best arguments for your case. The Court has specific Do a I need lawyer? rules and procedures that may be unfamiliar to you. You Are you the same as the VA? will be facing a from the VA who is an expert in veterans benefits law. It s a good idea to have a trained professional on your side. against the VA. 4 No, we have no connection with the Department of Veterans Affairs. We arrange for volunteer lawyers for appellants like you. Our volunteer lawyers argue for you, Neither the Court nor the VA will help you find a lawyer. If you want a lawyer and you have a legally viable claim, the Pro Bono Program will refer you to a free lawyer who will assist with your appeal. 5

6 STEP 2: Deciding to Hire a Lawyer Comparing Representation Options Are you affiliated with other veterans organizations? Self Representation Hiring a Lawyer Pro Bono Program The Pro Bono Program is dedicated to finding free legal representation for veterans and their families. Four national veterans service organizations The American Legion, the Disabled American Veterans, the National Veterans Legal Services Program, and the Paralyzed Veterans of America helped form the Pro Bono Program and are currently Pro Bono Program partners. Are you experienced with veterans law appeals? NO You can familiarize yourself with the law, but a trained lawyer is more qualified to handle your case. YES If you hire a private lawyer, make sure he or she is knowledgeable about veterans law. YES Our volunteer lawyers receive specific training to handle veterans law appeals. Are the Pro Bono Program staff and lawyers veterans themselves? Many of the staff and volunteers are veterans or family members of veterans. Our lawyers are specifically trained in veterans law. All of us are committed to helping veterans. Are the Pro Bono Program s lawyers free? Will I be charged a fee? NO However, you will likely incur minimal costs. MAYBE A private lawyer may charge a fee. He may ask for payment before he takes your case. Or he may collect a percentage of any benefits you eventually receive from VA, called a contingency fee. NO The Pro Bono Program will never charge you a fee and will never ask for a portion of your benefits. Our services are 100% free. No one from the Pro Bono Program lawyer or staff will ever ask you for money. Other lawyers have told me that their services were free. But they wanted to collect a percentage of a successful claim. Will you? A private lawyer may charge a fee. He may ask for payment before he takes your case. Or he may collect a percentage of any benefits you eventually receive from the VA. This is called a contingency fee. The Pro Bono Program will never charge you a fee and will never require a portion of your benefits. Our volunteer lawyers will represent you at the Court at no cost to you. The volunteer lawyer may collect Equal Access to Justice Act Fees, which are paid by the VA to the lawyer if he or she wins your case at the Court. This fee does not come out of your benefits. It is not paid by you in any way. Will you take my case? YES But it can be difficult to know what to do, how to do it and ensure you meet all deadlines. MAYBE A private lawyer may review your case. They may or may not decide to take your case based on factors that include: whether they have the resources to pursue your case, the size of your potential claims award, or the amount of time it may take to resolve your case. PROBABLY If you are a veteran or family member and you meet our eligibility requirements, we will refer your case to a volunteer lawyer. 6 Are you affiliated with other veterans organizations? MAYBE You may be a member of a veterans organization. They may or may not be able to give you some guidance on your appeal. MAYBE Check with the state or local offices of veterans service organizations for lawyers who have practiced before the Court. A list of private practitioners is also available on the Court s website. YES Four national veterans service organizations The American Legion, the Disabled American Veterans, the National Veterans Legal Services Program, and the Paralyzed Veterans of America helped form the Pro Bono Program and are currently Pro Bono Program partners. 7

7 STEP 3: Choosing The Pro Bono Program Is the Pro Bono Program right for my case? The Pro Bono Program is dedicated to finding free legal representation for veterans and their families. You ve probably been inundated with solicitations from lawyers. But how do you know which lawyer is right for you? Do they have experience in veterans law? Will they turn down your case for being too small or too big? Will they stick with you through the appeals process? Here are answers to some common questions. Will the Pro Bono Program definitely take my case? The Pro Bono Program is dedicated to finding free legal representation for veterans and their families. If you ve filed your appeal of a BVA denial, the Pro Bono Program will review your case. We can provide you with a free lawyer, if you meet all of the following criteria: You are a veteran or qualifying family member of a veteran You do not have a lawyer to help you Choosing a lawyer You ask us for our assistance and you meet our financial eligibility guidelines We can identify at least one issue in your case that can be argued before the Court. I am the widow/child/grandchild of a veteran. Will you still take the case? Yes. If you are the qualified family member of a veteran who had a case that has been denied by the BVA, we will try to help you. A lawyer told me my case was too small. Is my case too small for you? No. We will take a case of any size. It s possible that your claim wasn t large enough for a lawyer to collect a sufficient contingency fee a percentage of the benefits you might receive. The Pro Bono Program does not collect contingency fees. Another lawyer told me my case was too big. Is my case too big for you? No. We have lawyers with a variety of experience and will find someone who is well-acquainted with complex issues. I was told the Pro Bono Program will only take my case as a last resort, if other lawyers turn me down. Is that true? No! You do not have to be turned down by other lawyers to qualify for our program. We will evaluate your case at your request, whether other lawyers have turned you down or not. Will the Pro Bono Program still take my case if I was told my case has no merit? We will evaluate your case and determine how we can help you. If we cannot find an issue in your case that will allow us to represent you, we won t appear on your behalf before the Court. But we will still try to give you specific information or suggestions about your case. The Pro Bono Program will take a case of any size with legal merit. The Pro Bono Program will evaluate your case at your request, whether other lawyers have turned you down or not. 8 9

8 STEP 3: Choosing The Pro Bono Program What if I ve already talked to another lawyer? Will the Pro Bono Program still take my case? Yes. We can evaluate your case UNLESS you have signed a retainer agreement a contract with another lawyer. If that s the case, that lawyer will represent you unless you decide not to Why choose the Pro Bono Program? continue with him/her. Then you must talk to him/her about changing your Dedicated: The Pro Bono Program has matched mind. If you are already represented, more than 3,600 veterans with lawyers to assist we cannot evaluate your case, or even them with their appeals. We have recruited and discuss it with you. trained almost 3,000 volunteer lawyers. Experienced: The Pro Bono Program lawyers are trained in veterans law. In many cases, they have previously handled cases at the U.S. Court of Appeals for Veterans Claims. Volunteers: Our lawyers volunteer their time away from their own practices to work on your cases. They are not paid for their volunteer work with us. How do I know if my lawyer will stay through the completion of my case? If the Pro Bono Program assigns your case to a lawyer, he/she will be with you through the appeals process at the Court. If your case is sent back to the BVA after the appeal, the lawyer may or may not continue with your case. You will have to discuss this with your lawyer at that time. Has a lawyer told you that he/she has your power of attorney? Are you wondering what that means? When you give a lawyer your power of attorney, you are authorizing him/her to take certain legal actions on your behalf. For example, the Pro Bono Program would need your power of attorney to access your claims file at the VA and to file motions with the Court. If a lawyer has your power of attorney, you will have to discuss cancelling your agreement with him/her before the Pro Bono Program can evaluate your case. Will my lawyer be located near where I live? Can I meet with him? If you are assigned a Pro Bono Program lawyer, they may not be located near your home. If not, you will still be able to speak to them by phone or contact them by . I want to speak to a real person about my case. Can I call you? Of course. If you have questions about the process and how to get started, or if you want to contact us about evaluating your case, please call Will the Pro Bono Program lawyer be familiar with my case? The Pro Bono Program cannot read your case file until you give us permission. You must return our forms requesting that we evaluate your case and allow us access to your file. We do not need you to send us your case file, but you will need to give us your permission to get an official copy from the VA. The forms are found in the back of this booklet or are available online at Do you have a website that answers my questions? Yes. Please go to for more answers to your questions and to obtain the forms to apply for our services. 11

9 STEP 4: What To Expect How does the appeals process work? Your six-digit number will be different from your VA claim file number, your military office at How do I use that docket number number and your to keep track of my case? Social Security If the Pro Bono Program evaluates my case, number. All of the docket information is available on the Court s what will happen? website at Scroll down the menu on Once you return the required forms, we will evaluate your expect? the far left and click on Docket Search. Then click on the case and determine how we can help you. We will contact first link, which will take you to docket reports for cases filed you so that you know your case status. If we assign your after October case to a lawyer, the lawyer will contact you directly. If we cannot find an issue in your case that will allow a volunteer to represent you, someone on our staff case management lawyers, veterans law specialists or paralegals will be available to answer questions about your case. 12 What to Once your appeal is in motion, it can be difficult to keep track of your case whether you are represented by a lawyer or not. Here are the answers to some common questions about what to expect from the appeals process. How do I keep track of my case after I file my appeal? Regardless of whether you have a lawyer or not, when you file your notice of appeal, the Clerk of the Court will assign your case a number known as a docket number. The sixdigit number will be different from your VA claim file number, your military service number and your Social Security number. The next page will have a box for your docket (case) number. After typing your docket number in the upper left hand box, click on the Search button. This will take you to the Court s docket for your case. Finally, click on the docket number of your case for your information. What if I have questions? Who should I ask? Ask your lawyer. Do not contact the Court or VA directly. Your lawyer will do that for you. If the Pro Bono Program is still evaluating your appeal, you can contact us with questions about your case. You can get in touch with us at any time after you have returned the required forms. Call us at or us at If you don t have a lawyer and if you have not asked the Pro Bono Program to review your case, then the Clerk of the Court can answer some questions but only about procedures and the status of your appeal. The Clerk s office will not give you legal advice. You can reach the Clerk s Your docket number may look random, but there s a method to all those digits. Let s say your docket number is: The first two digits 11 are the last two digits of the year in which your appeal is filed. The last four digits 0015 represent the order in which appeals are received by the Court during the calendar year. So a docket number of is the 15th notice of appeal filed in Do not contact the Court or VA directly, if you have a lawyer. Your lawyer will do that for you. You can contact the Pro Bono Program by calling or ing at vetsprobono.org. 13

10 STEP 4: What To Expect What happens if the court rules in my favor? Will the Pro Bono Program still help me after a remand? Even if the Court decides you are entitled to benefits, it won t decide how much you are owed. That amount If the Court believes your appeal has merit, it will usually remand or send back your case to the Board of Veterans Appeals for additional action. The Court itself rarely reverses a BVA decision. Instead, the BVA will review its original decision as directed by the Court. Even if the Court decides you are entitled to benefits, it won t decide how much you are owed. That amount is determined by the VA and will require additional time. The Pro Bono Program lawyers are permitted to continue working with you after a remand, but they re not required to. They agree only to provide free representation for you at the Court. Once your case has been remanded to the BVA for further action, they are free of that obligation. If you wish to continue with them as your lawyer, discuss your interest and whether they will charge you a fee if they continue to represent you. is determined by the VA. Is that the end of my case? Not necessarily. There may be basis for another appeal if you think the VA either did not award you all the money that you believe you should have received or did not grant the proper or complete rating. If my case is sent back to the BVA, do I still need a lawyer? That s up to you. You may find it helpful to have someone assist you with your remand. You may ask your lawyer if he/she will continue with your case. If he/she doesn t, you may want to contact a veterans service organization. They might represent you or help you find a lawyer or a person with veterans law experience to assist you. What if the Court rules against me and I disagree? Is there anything I can do? You or your lawyer can ask the Court to reconsider its decision. You have 21 days from the date of the Court s decision to do this. If the Court rules against your request, you may be able to appeal to a higher court the U.S. Court of Appeals for the Federal Circuit. But that Court has limited jurisdiction to review decisions. And remember: your Pro Bono Program lawyer is not required to provide assistance to you beyond the U.S. Court of Appeals for Veterans Claims. If the court rules against you, you or your lawyer can ask the Court to reconsider its decision. You have 21 days from their ruling to do this. 14 case? 15 Is this the end of my

11 NOTES GLOSSARY Appeal: A review of your case by a higher court. For example, if you disagree with the BVA s denial of your benefits claim, you can appeal it to the U.S. Court of Appeals for Veterans Claims ask the Court to review it. Appellant: The person who filed the appeal. You will always be the appellant. Appellee: Your opponent in court. The appellee will always be the Secretary of the Department of Veterans Affairs (VA). Board of Veterans Appeals ( BVA or Board ): The BVA reviews the claims decisions by the Regional Offices of the Department of Veterans Affairs (VA). The BVA will be the first to deny or uphold your appeal for benefits. If the BVA denies your claim, you can appeal that decision to the U.S. Court of Appeals for Veterans Claims and ask the Pro Bono Program for a lawyer to represent you. See for more information. Contingency Fee: A percentage of your benefits award that some private lawyers will collect as their fee if they successfully represent you in front of the VA. The Pro Bono Program will never charge you a contingency fee and will never ask for a portion of your claim. Department of Veterans Affairs (VA): The VA will decide on your initial claim for benefits. If the VA denies your claim, you may begin the appeals process, first by appealing to the Board of Veterans Appeals and, if necessary, to the U.S. Court of Appeals for Veterans Claims. Ultimately, the VA will determine the amount of any benefits you receive. 17

12 GLOSSARY (Continued) Engagement Agreement: (See Retainer Agreement.) Equal Access to Justice Act (EAJA): A federal law that allows you to ask the government to pay your lawyers fees and expenses but only if you are already represented by a lawyer and if you won your appeal before the U.S. Court of Appeals for Veterans Claims. An EAJA award does not affect any award that you receive from VA. This fee does not come out of your benefits. It is not paid by you in any way. Merit: An issue in your case that can appropriately be argued before the Court. Your case must have some merit for a lawyer to present an appeal to the Court on your behalf. The Pro Bono Program or your lawyer will review your case to see if they can find enough merit for an appeal. Stay of Proceedings: The Court can stay or delay your appeal proceedings, either on its own or upon a request from one or both parties. You would typically see a stay of proceedings while your lawyer and the VA discuss questions about your appeal. The Pro Bono Program may request a stay while we evaluate your case. U.S. Court of Appeals for Veterans Claims (the Court): This is the court that will hear your appeal. It is an independent Federal Court that reviews decisions issued by the Board of Veterans Appeals (BVA). The Court is not part of the Department of Veterans Affairs (VA). Once your claim is denied by the BVA, you can appeal that decision to the Court. You can ask the Pro Bono Program for a lawyer to represent you in front of the Court. See for information about the Court. Power of Attorney: A document that authorizes someone, such as a lawyer or the Pro Bono Program, to take certain legal actions on your behalf. You are always free to revoke (cancel) that power of attorney at any time. Remand: If the Court agrees with your appeal of a BVA decision, it will remand or send back your case to the BVA for additional action. The Court very rarely reverses the BVA s decision itself. Instead, the BVA reviews its original decision as directed by the Court. Retainer Agreement: An agreement or contract between you and another party, either the Pro Bono Program or a lawyer. Veterans Consortium Pro Bono Program (Pro Bono Program): Funded by a congressionally created grant in The Pro Bono Program provides assistance to unrepresented veterans or their family members who have filed appeals at the U.S. Court of Appeals for Veterans Claims. The Pro Bono Program also recruits and trains volunteer lawyers in veterans law. Viable Claim: (Also, see Merit.) Your case must have an issue that can appropriately be argued before the Court. Your case must have a viable claim (a claim with merit) for a lawyer to present an appeal to the Court on your behalf

13 CONSORTIUM PARTNERS NOTES The Pro Bono Program Partners The Veterans Consortium Pro Bono Program is made up of four organizations: The American Legion The Disabled American Veterans The National Veterans Legal Services Program The Paralyzed Veterans of America Still have questions? Go to for more answers to your questions and forms to apply for the Pro Bono Program services. Or call us at

14 NOTES This brochure is printed with funds from a grant authorized by the Congress of the United States to the Pro Bono Program and administered by the Legal Services Corporation. The Pro Bono Program has produced this brochure and is solely responsible for its content. It has not been submitted to nor approved by Congress, the U.S. Court of Appeals for Veterans Claims, the Legal Services Corporation, or the Department of Veterans Affairs. This brochure is intended to provide information to individuals who have an active appeal at the U.S. Court of Appeals for Veterans Claims. It is based on the Pro Bono Program s understanding of the Court s Rules of Practice and Procedure as of the printing of this publication (April 2012). Those rules are subject to change, but an appellant will find a complete set of current Rules of Practice and Procedure at the Court s website (see page 3). 22

15 About your appeal L Street, NW Suite 420 Washington, DC TOLL FREE VOICE FAX

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