“We are dealing with veterans, not procedures -- with their problems, not ours.”

“We are dealing with veterans, not procedures -- with their problems, not ours.” Omar Bradley, 1947 Administrator U.S. Veterans Administration

VA BENEFITS & THE APPEALS PROCESS Kenneth A. Walsh Deputy Assistant General Counsel VA Office of the General Counsel Veterans Court Litigation Group

Judicial Review & VA’s Adjudication Process Veteran Files Claim Veteran Files Claim Pre-1988 No Appeal Regional Office (VBA) • Develops Evidence • Adjudicates Claim Regional Office (VBA) • Develops Evidence • Adjudicates Claim Board of Veterans’ Appeals (BVA) • De novo review of evidence • Adjudication independent of VBA Board of Veterans’ Appeals (BVA) • De Novo Review of Evidence • Secretary’s Final Adjudicator • Independent of VBA Post VJRA of 1988 • Veterans Court • Article I Court • Independent of VA • Further Review • Federal Circuit • Supreme Court

RO Decision • 1 yr from date of RO decision to file NOD • VA issues SOC explaining basis of decision • 60 days from SOC to file “substantive appeal” (or remainder of 1 yr from date of decision)

BVA Decision • 120 days to appeal to CAVC • Motion for BVA recon (no time limit) • Motion to vacate (no time limit)

Veterans Court • Article I Court • 9 Judges, 13-15 Year Terms • Appointed by President, confirmed by Senate • Appellate, not trial court • 25 vols, Veterans Appeals Reporter • Exclusive jurisdiction over BVA decisions • In FY13, more than 3,500 docketed appeals • 38% pro se when NOA filed

Sources of Veterans Law • Statutes – Title 38, U.S. Code • Regulations - Title 38, Code of Federal Regulations • VA General Counsel Opinions • VBA Adjudication Manual – M21-1? Maybe • Board of Veterans’ Appeals Decisions? No! • Judicial Interpretations – • U.S. Court of Appeals for Veterans Claims. • U.S. Court of Appeals for the Federal Circuit. • Other Judicial Interpretations? Unlikely • Veterans Court’s Rules of Practice & Procedure

Themes in Veterans Law • Relationship Between VA and Veteran • Within Agency Adjudication, Paternalism • Non-Adversarial, informal process • Ties go to the “runner” (i.e., the Veteran) • Duty to Notify and Assist in Developing Evidence • Liberal Pleading Requirement • Judicial Review, Adversarial • Elements of a Claim • Veteran Status • Existence of a disability • Nexus between disability and service • Degree of disability (VASRD) • Effective date of compensation Service Connection Rating, or Evaluation

Appeal Events/Milestones Develop Record Argue Appeal Briefing Schedule Appellant’s Brief – 74 days after RBA Appellee’s Brief – 60 days after opposing brief filed Reply Brief – 14 days after Secy’s Brief filed Extensions (max. 45 days) Court Orders Oral Argument • File Board Decision (OGC) • 30 days after Docketing • Record Before the Agency (OGC) • 60 days after Docketing • Scanned images – CD-Rom • Whole claims file • Dispute? (Veteran) • Within 14 days of RBA • Goal – Resolve dispute • Rule – Was document in claims file for BVA consideration? • Record of Proceedings (OGC) • 14 days after briefing concluded • Only documents cited by parties

Questions? KENNETH A. WALSH VA OFFICE OF THE GENERAL COUNSEL Kenneth.walsh@va.gov 202.632.5987 www.va.gov

“We are dealing with veterans, not procedures -- with their problems, not ours.”