Board of Veterans' Appeals

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Department of Veterans Affairs
Board of Veterans' Appeals
Seal of the United States Department of Veterans Affairs.svg
Department Seal
US Board of Veterans' Appeals Logo.jpg
Board of Veterans Affairs logo
Flag of a United States Assistant Secretary of Veterans Affairs.svg
Flag of the Chairman of the Board of Veterans' Appeals and Assistant Secretary of Veterans' Affairs
Agency overview
FormedJuly 21, 1930; 91 years ago (1930-07-21)
(Cabinet rank 15 March 1989)
TypeAppellate review board for decisions made by VA agencies, on behalf of the Secretary
JurisdictionUnited States federal government
StatusActive
HeadquartersVeteran Affairs Building
810 Vermont Avenue NW., Washington, D.C., U.S.
Employees108 Veterans Law Judges
770 Attorney-advisers
Non-attorney staff: unknown
Annual budget$196 million (FY 2021)
$228 million ( FY 2022)
Agency executives
  • Cheryl L. Mason, Chairman
  • Kenneth Arnold, Vice Chairman
Parent departmentDepartment of Veterans Affairs
Websitewww.bva.va.gov

The Board of Veterans' Appeals (BVA) is an administrative tribunal within the United States Department of Veterans Affairs (VA), located in Washington, D.C. Established by Executive Order on July 28, 1933, it determines whether U.S. military veterans are entitled to claimed veterans' benefits and services. The Board's mission is to conduct hearings and decide appeals properly before the Board in a timely manner.[1] The Board's jurisdiction extends to all questions in matters involving a decision by the Secretary under a law that affects a provision of benefits by the Secretary to Veterans, their dependents, or their Survivors.[2] Final decision on such appeals are made by the Board based on the entire record in the proceedings and upon consideration of all evidence and applicable provisions of law and regulation.[3] The Board's review is de novo.

In Fiscal Year 2018, the Board issued over 81,000 decisions[4] for Veterans and their families, which is the highest number of decisions issued by the Board since the 1988 enactment of the Veterans' Judicial Review Act (VJRA), which established the United States Court of Appeals for Veterans Claims (CAVC). The Fiscal Year (FY) 2018 total of 85,288 decisions is a 62% increase over the FY 17 total of 52,537. Additionally, the Board held 16,422 hearings. The Board continued its improved output and hearings in 2019, 2020, and 2021 - doubling the number of decisions held in 4 years time -increasing decisions issued to more than 100,000 and hearings held to over 23,000. Additionally, the Board implemented innovative changes ranging from the Interactive Decision Template tool to Virtual Tele-hearing opportunities using cell phones. The Board began a strong recruitment of veterans and military spouses across several positions to include Veterans Law Judges, attorneys, and administrative and operations personnel to enhance and improve service to veterans and their families.

Structure of the Board[edit]

Chairman of the Board of Veterans' Appeals
Seal of the United States Department of Veterans Affairs.svg
Agency Seal
Flag of a United States Assistant Secretary of Veterans Affairs.svg
Personal flag of the Assistant Secretary of Veterans Affairs, of which the Chairman ranks as
Cheryl Mason official photo.jpg
Incumbent
Cheryl L. Mason

since November 8, 2017
Board of Veterans Appeals
Reports toSecretary of Veterans Affairs
SeatWashington, D.C.
AppointerThe President
with Senate advice and consent
Term length6 years
No restriction on renewal
Constituting instrumentSec 4001 of Pub.L. 85–857, H.R. 9700, 72 Stat. 1241, enacted September 2, 1958, as amended
DeputyVice Chairman
SalaryExecutive Schedule, Level IV
$176,300 USD (January 2022)
Websitewww.bva.va.gov

The Chairman of the Board of Veterans' Appeals is a senior position within the United States Department of Veterans Affairs that is responsible for the operation and policies of the Board of Veterans' Appeals.

The Chairman ranks equivalent to a department Assistant Secretary and is nominated by the President and confirmed by the Senate for a renewable, six-year term, and must be a licensed attorney in good standing in a state or territory.

The current chairman of the Board is Cheryl L. Mason of Virginia, who was nominated by President Trump on September 5, 2017. Chairman Mason was confirmed by the Senate on November 8, 2017, and was sworn in by then-Secretary David J. Shulkin, on December 3, 2017. Chairman Mason is the first woman and military spouse to serve in this post. On April 15, 2022, President Biden announced his intention to nominate Jaime Areizaga-Soto to replace Chairman Mason.

History[edit]

Beginning in 2011 and continuing up until the appointment of Chairman Mason in 2017, the Board was led several different leaders who served as the Board's Vice Chairman, which is non-Senate confirmed.

Chairman Name Assumed Office Left Office Appointed by Agency Executive [note 1]
John G. Pollard 1934 1937 Franklin D. Roosevelt Frank T. Hines
Robert L. Jarnagin 1937 1957 Franklin D. Roosevelt

Franklin D. Roosevelt
Harry S. Truman
Dwight D. Eisenhower

Frank T. Hines

Omar Bradley
Carl R. Gray Jr.
Harvey V. Higley

James W. Stencil 1957 1971 Dwight D. Eisenhower
John F. Kennedy
Lyndon B. Johnson
Richard Nixon
Sumner G. Whittier
John S. Gleason Jr.
William J. Driver
Donald E. Johnson
Lawrence R. Pierce, Jr. 1971 1974 Richard Nixon Donald E. Johnson
Sydney J. Shuman 1974 1981 Gerald Ford
Jimmy Carter
Richard L. Roudebush
Max Cleland
Kenneth E. Eaton 1982 1991 Ronald Reagan
George H. W. Bush
Robert Nimmo
Harry N. Walters
Thomas K. Turnage
Edward Derwinski
Charles Cragin March 1991 March 1997 George H. W. Bush
Bill Clinton
Ed Derwinski

Jesse Brown

Eligah D. Clark November 1998 November 2004 Bill Clinton
George W. Bush
Togo D. West, Jr.
Anthony Principi
James P. Terry July 2005 February 2011 George W. Bush
Barack Obama
Jim Nicholson
James Peake
Eric Shinseki
Steven L. Kelley

Vice Chairman /Executive in Charge [note 2]

February 2011 June 2013 Barack Obama Eric Shinseki
Laura H. Eskenazi

Vice Chairman / Executive in Charge [note 2]

June 2013 July 2016 Eric Shinseki

Bob McDonald

Carol A. DiBattiste

Vice Chairman / Executive in Charge [note 2]

August 2016 January 2017 Bob McDonald
David C. Spickler

Vice Chairman / Executive in Charge [note 2]

February 2017 November 2017 Donald Trump David Shulkin
Cheryl L. Mason November 2017 (incumbent) Donald Trump
Joe Biden
David Shulkin
Robert Wilkie
Denis McDonough
Notes
  1. ^ From 1933 through 1989, the Board was a part of the Veterans Administration, an independent executive agency, which was led by an Administrator of the Veterans Administration. After the passage of the Department of Veterans Affairs Act of 1988 (Pub.L. 100–527, H.R. 3471, 102 Stat. 2637, enacted October 25, 1988), the Administrator became the Secretary of Veterans Affairs.
  2. ^ a b c d During this period, the Secretary designated the Vice Chairman to perform the duties of the Chairman, while there was the absence of a Senate-confirmed nominee. The person performing those duties were given the title Executive in Charge.

Board Executives[edit]

The Board is led by a chairman, a vice chairman, four deputy vice chairmen, an executive director for appellate support, and chief counsel. The Chairman ranks equivalent to a department Assistant Secretary and is nominated by the President and confirmed by the Senate for a term of six years. The Vice Chairman is a member of the Senior Executive Service, and is appointed by the Secretary, with the approval of the President, and serves at the pleasure of the Secretary and is the Chief Operating Officer of the Board.

Deputy Vice Chairmen (or DVCs) are members of the Board and of the Senior Executive Service and are appointed by the Secretary, by and with the approval of the President to serve as a member of Board's executive leadership team. Their primary role is to provide oversight, guidance and management of the work product of the Veterans Law Judges, helping identify, consider, and resolve motions and appeals. Each DVC manages a team of a number of decision-writing judges and their staff counsel.

Other executive staff include Chief Counsel, who oversees the Board's Quality Assurance and Improvement, CAVC Litigation Support, Customer Service and Records Management programs, and the executive director of Appellate Support, which is responsible for overseeing the non-decision-making portions of the Board, such as human resources, logistics and supplies, and IT.

Veterans Law Judges (VLJ)[edit]

The Secretary may appoint any number of members that he or she deems "necessary in order to conduct hearings and dispose of appeals properly before the Board in a timely manner".[1] Those members are appointed by the Secretary, based on recommendations by the Chairman, and with the approval of the President, and must be an attorney "in good standing" with any state bar..[5] Members are commissioned and titled as Veterans Law Judges (VLJs), similar to that of other executive branch administrative law judges in the United States. As of January 2022, the Board consists of 108[6] Each VLJ can decide an appeal in either a single-judge decision, or in certain cases, a panel decision of at least three VLJs. The Board also employs nearly 800[6] attorney-advisors, which are staff attorneys also trained in veterans law who assist each VLJ review the facts of each case and write the decision, and a number of non-decision writing attorneys, professional and administrative staff to help execute the numerous other Board programs supporting the decision teams.

The Chairman, Vice Chairman, Deputy Vice Chairmen, and Chief Counsel are all members of the Board. However, the Chairman is prohibited by law from deciding appeals, unless he or she is sitting as part of a panel.[7] In practice, however, rarely do any of the senior executives write a Board decision (outside of ruling on certain motions).

Appeals process[edit]

The United States has the most comprehensive system of assistance for Veterans of any nation in the world, with roots that can be traced back to 1636, when the Pilgrims of Plymouth Colony were at war with the Pequot Indians. The Pilgrims passed a law that stated that disabled soldiers would be supported by the colony. Later, the Continental Congress of 1776 encouraged enlistments during the Revolutionary War, providing pensions to disabled soldiers. In the early days of the Republic, individual states and communities provided direct medical and hospital care to Veterans. In 1811, the federal government authorized the first domiciliary and medical facility for Veterans. Also in the 19th century, the nation's Veterans assistance program was expanded to include benefits and pensions not only for Veterans, but for their widows and dependents. This commitment is reflected in U.S. President Abraham Lincoln's words "to care for him who shall have borne the battle and for this widow, and his orphan," which is also the current motto of the United States Department of Veterans Affairs.[8]

The Veterans appeals process is a complex, non-linear process, which is set in law and is unique from other standard appeals processes across the Federal and judicial systems.

Due to increasing difficulty to address the growing number of appeals, Congress passed the Veterans Appeals Improvement and Modernization Act of 2017 ("AMA") which was signed into law on August 23, 2017.[9] AMA was implemented by the VA on February 19, 2019. Currently, the department is adjudicating claims and appeals under the previous legacy system and the new Appeals Modernization system.[10]: 5  The department is aiming to finish the legacy backlog by 2023.[11]

Procedure[edit]

An individual may file a claim for VA Veterans benefits and programs, such as: Disability Compensation; Education Assistance (GI Bill/ Post 9-11 GI Bill); Insurance; Dependency and Indemnity Compensation; Medical; Pension; and Vocational Rehabilitation and Education (VR&E). The most common claim is for Disability Compensation, which comprised 93.88 percent of all appeals in Fiscal Year 2015.[12] For example, a Veteran who receives an injury, or develops a medical condition while serving in the United States Armed Forces, is generally entitled to receive compensation based on the degree to which the injury affects things like the person's mobility, future earning capacity, or quality of life. A claimant seeking such benefits first files a claim with a Regional Office of the VA located near the claimant. When a claimant's application for benefits has been denied by the Agency of Original Jurisdiction (AOJ), such as the Veterans Benefits Administration (VBA), Veterans Health Administration (VHA) or National Cemetery Administration (NCA), depending on the type of appeal (legacy or AMA), an notice of disagreement is filed with either the AOJ or the Board itself.[13] The Board then makes the final determination on an appeal within the VA's jurisdiction.[14]

Legacy Appeals[edit]

VA considers any decision issued prior to February 19, 2019, a legacy appeal, which was the effective date of the Appeals Modernization Act. A feature of the legacy VA appeals process is a continuous open record that allows a Veteran, Survivor, or other appellant to submit new evidence and/or make new argument at any point from the beginning to the end of the appeals process. Additionally, the duty to assist throughout the appeals process requires VA to develop further evidence on the Veteran's behalf and pursue new argument and theories of entitlement. Each time arguments are presented and evidence is added/ obtained, the AOJ generally must issue another decision considering that evidence, which protracts the timeline for appellate resolution.[3] Legacy appeals have the most complex process, due to the aforementioned requirements that frequently resulted in the appellate delays at the AOJ level.

If a Veteran disagrees with all or part of a VA decision, he or she must first file a legacy Notice of Disagreement (NOD) with the AOJ within one year from the date of the letter notifying the Veteran of the claims decision. Prior to 2017, NODs could be filed on any form accepted by the Secretary, but since 2017, must be filed on the prescribed standard form. Once received, the local VA office will again review the Veteran's file again de novo, and prepare a written explanation of why the claim was denied, known as the Statement of the Case (SOC). Once completed, the AOJ will provide a copy to the claimant and his attorney, claims agent or Veteran Service Officer by mail.

After reviewing the Statement of the Case (SOC), the Veteran (appellant), and his or her attorney, claims agent, or Veterans Service Officer, has sixty (60) days to file a substantive appeal on a VA Form 9, Appeal to Board of Veterans' Appeals', identifying what issued they continue to disagree with. At this time, the appellant may elect an optional hearing before a Veterans Law Judge, or may allow the VLJ to decide the appeal on the evidence of record. After a substantive appeal is filed, the local VA office will certify and transfer the appeal to the Board of Veterans’ Appeals. The Board will hold a hearing (if one was requested) and will issue a decision to be prepared and mailed to the appellant. If the optional in-person, travel board or video teleconference hearing with a Veterans Law Judge at the Board of Veterans’ Appeals is selected on the VA Form 9, in the case of travel or videoconference hearings, be scheduled at the Regional Office (or other VA facility) closest to the appellant, or for Central Office hearings, at the Board's offices in Washington, DC. An appellant's travel costs for a hearing are not paid by VA.

The only caveat to this process is that because of the open record, evidence can be submitted at any time throughout the entire appellate process, up to and including before the Board issues its decision. Any evidence or request that VA obtain any evidence that is submitted after the mailing of the Statement of the Case, the claimant is required to receive a Supplemental Statement of the Case (SSOC) after the local VA office reviews that evidence.[15] This can complicate the process, because if the appeal has not yet been certified, the AOJ cannot certify the appeal to the Board until the SSOC is issued.[16] However, if the appeal has already been certified to the Board, the Board will need to receive the appellants express waiver to review the evidence in the first instance, waiving the possibility of the appeal being remanded simply for evidentiary development.

Post-AMA Appeal Process[edit]

Any decision issued after February 19, 2019, is subject to the new regulations issued in the wake of the passage of the AMA. Those regulations wholly changed the structure and way that decision reviews are undertaken, such as offering two new "review lanes" that a veteran can take to have their decision reviewed prior to a Board appeal. Veterans can now either file either a supplemental claims, which are reviewed by the office initially issuing the decision based on new and relevant evidence, a Higher-Level Review, which reviews the previous decision de novo, by Senior Review Officers at specialized decision review centers, or they can file an appeal directly with the Board. This change removed the agency of original jurisdiction from the appeal process once the initial decision is issued, removing the time-consuming and burdensome steps in the Board appeal process that required the Veterans and AOJs to complete before an appeal could even reach the Board.

To initiate an appeal, the Veteran/appellant will need to file a Notice of Disagreement directly with the Board. Once the NOD is docketed and reviewed by the Board, based on the choices made by the Veteran or appellant, their appeals are placed on one of three dockets, allowing them to choose the way they wish to have their claims and supporting evidence reviewed:

  • In a Direct Review, the Board reviews the decision based on the evidence of record at the time the initial decision was issued. This means that the Board will not review any new evidence submitted after the initial decision was issued. This change would end the result of having claims remanded unnecessarily because of the addition of new evidence to the file after a decision was issued. Veterans can still file written arguments with their direct review, and can also file a supplemental claim once the Board concludes its review, but new evidence would need to be submitted, and any evidence would be required to be "relevant" to proving a fact of the original claim that was not already decided.[17]
  • In a Evidence Submission Review, appellants are offered ninety (90) days to submit any new evidence that would be new and relevant to their appeal. This option allows the Veteran to develop their record with additional evidence based on the initial decision issued by the AOJ, with the hopes of overcoming the "more likely than not" standard that is built into the Veterans Claims system to prove their claims.
  • In a Hearing Review, appellants are offered a hearing (Central Office, videoconference, or virtual) between them, their attorney, claims agent or Veteran Service Officer, and a Veterans Law Judge that will allow them to explain their case to the VLJ. Hearings are recorded, and transcripts are considered part of the evidentiary record. Veterans can also submit any new and relevant evidence to the record for 90 days after the hearing, which allows them to support the contentions made in their hearing with new and relevant evidence.

Judicial Review[edit]

Decisions of the Board are non-precedential, meaning that each decision is specific and binding with respect to the individual claim and claimant before the Board. While appellants may review and cite to other Board decisions, the Board will not consider the decision or rulings in that case beyond the extent that is relates to the instant appeal.[18] Once the Board issues its appeal, it is only reviewable by either the Board itself (in the instance of a motion for reconsideration), or by filing a Notice of Appeal with the United States Court of Appeals for Veterans Claims (CAVC), which sits separate from the Board, and provides judicial oversight and review of its decisions. Only an Veteran can file an appeal to CAVC; the Secretary is prohibited by law from doing so. Even so, CAVC reviews are limited in scope to questions of whether the Board's decision was not within the confines of the applicable Veterans law and regulations, other federal administrative procedures, and/or the Constitution. Findings of fact by the Board are not reviewable, unless the Court determines they are clearly erroneous.[19]

Decisions from CAVC can then be appealed to the United States Court of Appeals for the Federal Circuit if a disagreement over a question of law remains, and finally, to the Supreme Court of the United States, if it should believe a significant issue of legal precedence remains.

See also[edit]

References[edit]

  1. ^ a b 38 U.S.C. § 7101(a).
  2. ^ 38 U.S.C. § 551(a); 38 U.S.C. § 7104(a).
  3. ^ a b http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2015AR.pdf Public Domain This article incorporates text from this source, which is in the public domain.
  4. ^ "VA achieves historic goal by delivering more than 81,000 appeals decisions to Veterans in fiscal year 2018". VA News Release. September 14, 2018.
  5. ^ Daniel T. Shedd, "Overview of the Appeal Process for Veterans' Claims", Congressional Research Service Report 7-5700 (April 29, 2013), page 3, citing 38 U.S.C. §7101A.
  6. ^ a b Board of Veterans; Appeals, Department of Veterans Affairs (October 2021). Annual Report Fiscal Year (FY) 2021 (PDF) (Report). Retrieved April 17, 2022.{{cite report}}: CS1 maint: multiple names: authors list (link) CS1 maint: url-status (link)
  7. ^ "38 U.S. Code § 7102 - Assignment of members of Board". LII / Legal Information Institute. Retrieved 2022-04-17.
  8. ^ http://www.va.gov/opa/publications/celebrate/vamotto.pdf[bare URL PDF]
  9. ^ Sisk, Richard (2017-10-31). "Trump Signs Bill to Speed Up VA Disability Appeals Process". Military.com. Retrieved 2021-09-11.
  10. ^ Mason, Cheryl L.; Murphy, Elizabeth (September 2020). "Veterans Appeals Modernization: Choice, Control, and Clarity for Veterans" (PDF). The Nebraska Lawyer: 5–8.
  11. ^ "VA will miss its original 2022 deadline for resolving legacy appeals". Federal News Network. 2021-07-13. Retrieved 2021-09-12.
  12. ^ BOARD OF VETERANS APPEALS ANNUAL REPORT FY2015, Page 26. http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2015AR.pdf
  13. ^ Daniel T. Shedd, "Overview of the Appeal Process for Veterans' Claims", Congressional Research Service Report 7-5700 (April 29, 2013), page 3, citing 38 U.S.C. §7104(a).
  14. ^ Daniel T. Shedd, "Overview of the Appeal Process for Veterans' Claims", Congressional Research Service Report 7-5700 (April 29, 2013), page 3, citing BOARD OF VETERANS' APPEALS, VAPAMPHLET 01-00-1, UNDERSTANDING THE APPEALS PROCESS (2000), page 6.
  15. ^ 38 CFR 19.31
  16. ^ 38 CFR 19.37
  17. ^ 38 CFR 3.2501 Accessed April 17, 2022
  18. ^ 38 CFR 20.1303
  19. ^ 38 U.S.C. § 7261

External links[edit]