Court of Appeals for Veterans Claims (CAVC) Guide | Federal Court Appeals

The Court of Appeals for Veterans Claims (CAVC) is an independent federal court that reviews decisions from the Board of Veterans Appeals. After the Board denies your appeal, CAVC is your last chance to obtain relief within the VA system before considering broader federal court options.

Understanding the Court of Appeals for Veterans Claims

CAVC is not part of the VA—it's an independent Article I court with judges appointed by the President and confirmed by the Senate. This independence is crucial: CAVC judges have no loyalty to the VA and frequently reverse Board decisions when legal errors occurred.

What CAVC Does (and Doesn't Do)

CAVC reviews Board decisions for legal errors. Specifically, the court determines whether:

• The Board applied the correct legal standards
• The Board's factual findings are supported by the record
• The Board provided adequate reasoning for its decision
• The Board followed proper procedures and respected due process

What CAVC does NOT do:

• Consider new evidence (appeals are based on the existing record)
• Conduct new hearings or take testimony
• Re-weigh evidence or make credibility determinations
• Decide questions of fact that weren't clearly erroneous
• Increase your rating directly (they remand to VA/Board to apply correct law)

Think of CAVC as a referee checking whether the Board followed the rules, not as a second Board making a new decision on your claim.

When to Appeal to CAVC

Consider appealing to CAVC when the Board's decision contains:

Clear Legal Errors:

• Board applied the wrong statute, regulation, or precedent to your case
• Wrong legal standard used or benefit of the doubt not applied
• Decision violates binding precedent
• Regulation interpreted contrary to plain language

Inadequate Reasons and Bases:

• Conclusions stated without explaining reasoning
• Significant evidence favorable to you was ignored or not discussed
• Internal contradictions in the decision
• Insufficient explanation of why one expert was credited over another

Unsupported Factual Findings:

• Board's findings clearly contradicted by evidence
• Findings made contrary to undisputed evidence
• Speculation presented as fact

Procedural Errors:

• Due process violations or lack of proper notice
• Denied hearing you were entitled to
• Bias or prejudice evident in the decision
• Failure to develop record when duty to assist applied

When NOT to Appeal to CAVC

Don't appeal to CAVC when:

• You simply disagree with how the Board weighed evidence
• You have new evidence (file Supplemental Claim instead—faster)
• The Board's decision was legally correct
• Potential benefits don't justify the cost and complexity
• The Board's reasoning was adequate even if outcome wasn't what you hoped

The 120-Day Deadline: Critical Timing

The most important thing to know about CAVC appeals is the strict 120-day filing deadline. Unlike VA appeals where you have one year, CAVC appeals must be filed within 120 days of the date the Board mailed its decision.

How to Calculate Your Deadline:

• Find the date at the top of your Board decision letter (not when you received it)
• Count 120 days forward from that date
• Your Notice of Appeal must be filed by that date—no exceptions
• If the 120th day falls on a weekend or holiday, deadline extends to next business day

What Happens If You Miss the Deadline:

Missing the CAVC deadline is fatal to your appeal. The deadline is jurisdictional—the court has no power to hear your case if you file even one day late. There are no extensions, no excuses, no equitable tolling. If you miss it, your only options are:

• File a Supplemental Claim with new evidence
• Request Board reconsideration if there's new evidence
• Accept the Board's decision as final

Protecting Your CAVC Rights:

• Calendar the deadline immediately upon receiving Board decision
• Contact attorneys early—don't wait until day 110
• File a protective Notice of Appeal (just $50) if unsure whether to proceed
• Don't assume Board reconsideration extends the CAVC deadline

How to File a CAVC Appeal

Step 1: Consult with CAVC Attorneys (Days 1-30)

Before filing, consult with attorneys specializing in CAVC appeals. Most offer free case evaluations. They'll:

• Review your Board decision for legal errors
• Evaluate strength of potential appeal arguments
• Advise whether CAVC appeal or Supplemental Claim is better
• Explain fees and representation arrangements

Finding CAVC attorneys:

• National Veterans Legal Services Program (NVLSP) directory
• State bar associations with veteran law sections
• Law school veteran clinics
• CAVC website list of admitted attorneys

Step 2: File Notice of Appeal (By Day 120)

To initiate your CAVC appeal, file a Notice of Appeal:

• Must be filed within 120 days of Board decision date
• Requires $50 filing fee (fee waiver available for hardship)
• Identifies you as appellant and Board decision being appealed
• Can be filed electronically through CAVC's CM/ECF system

Filing the Notice is relatively simple—most file online in hours. The complexity comes later in briefing.

Step 3: The Record Before Agency (RBA)

After filing, the VA Secretary must file the Record Before Agency—all documents before the Board when it made its decision. This includes:

• Your complete claims file (C-file)
• All evidence the Board considered
• Board decision and any transcripts

The Secretary has 60 days to file RBA. CAVC reviews are limited to this record—you cannot introduce new evidence.

Step 4: Briefing (Months 3-9)

The heart of a CAVC appeal is written briefing. Having an experienced attorney becomes critical.

Appellant's Brief (You):

Within 60 days of RBA being filed, file your principal brief arguing why the Board's decision contains legal error. A strong brief:

• Identifies specific legal errors with precision
• Cites relevant statutes, regulations, and precedents
• Explains why error wasn't harmless
• Cites to record by page number
• Proposes appropriate remedy (remand, reversal)

Secretary's Brief (VA):

After your brief, the VA Secretary files a response defending the Board's decision. The VA is represented by Department of Justice attorneys specializing in veterans law.

Your Reply Brief (Optional):

You can file a reply brief responding to the Secretary's arguments.

Step 5: Oral Argument (If Requested)

After briefing, you can request oral argument before a three-judge panel. Oral argument is optional—many cases are decided on briefs alone. If granted, it typically lasts 20-30 minutes total (10-15 per side), with judges asking questions.

Step 6: Court Decision

After briefing (and oral argument if held), CAVC issues a written decision. This typically comes 6-18 months after oral argument, with variation depending on complexity.

Joint Motion to Remand: The Faster Path

In many CAVC cases, after reviewing your appeal brief, the VA Secretary agrees that the Board's decision contains error and should be remanded. The parties can file a Joint Motion to Remand (JMR) rather than continuing through full briefing and decision.

How JMR Works:

• After you file initial brief, VA evaluates your arguments
• If VA agrees Board erred, they contact your attorney to negotiate JMR
• You and Secretary jointly move to remand with specific instructions
• CAVC typically grants JMR within days
• Your case returns to Board with instructions to correct error

Benefits of JMR:

• Much faster: Granted within weeks vs. waiting 1-2 years for decision
• Less attorney time: Lower costs if paying hourly
• Cooperative resolution: VA recognized error without court forcing it
• Same outcome: You get what you would have gotten if you won

JMR Statistics:

Approximately 70-80% of CAVC cases settle via JMR rather than proceeding to full decision. This shows many Board errors are recognized by the VA once an attorney points them out in a CAVC brief.

CAVC Decision Outcomes

Remanded to Board:

Most common outcome. CAVC sends case back to Board with instructions to correct legal error. Board must follow instructions and issue new decision. You can appeal new decision again if they don't follow instructions.

Reversed and Remanded:

CAVC finds Board's decision was wrong and reverses it, but remands for Board to make additional findings or apply correct law. Stronger than simple remand because CAVC determined outcome should be different.

Reversed (Rare):

CAVC reverses outright, typically when legal error is so clear that only one outcome is possible under correct law. Case goes back to VA for implementing court's decision, not re-adjudication.

Affirmed:

CAVC finds Board's decision was legally correct. You lost the appeal. Your options:

• Accept the decision as final
• File for reconsideration (rarely granted)
• Appeal to Federal Circuit (even more complex and expensive)
• File Supplemental Claim with new evidence

Dismissed:

CAVC dismisses appeal, typically for jurisdictional reasons. Dismissal means case doesn't proceed and Board decision stands.

Costs and Attorney Fees

CAVC Filing Costs:

• Notice of Appeal filing fee: $50 (waivable for hardship)
• No additional court costs for copies, filings, or oral argument

Attorney Fee Arrangements:

Contingency Fee (Most Common):

• Attorney receives percentage of past-due benefits if you win (typically 20-33%)
• You pay nothing upfront
• If you lose, you owe nothing
• Fee must be approved by CAVC, can't exceed 33.3% of past-due benefits

Hourly Fee:

• You pay for attorney time regardless of outcome (typically $250-$500/hour)
• Total depends on complexity ($5,000-$25,000+ common)
• You pay as work is performed

Pro Bono (Free):

• Some law clinics, veteran organizations, and attorneys provide free representation
• Usually reserved for strong cases or veterans with financial need

Equal Access to Justice Act (EAJA):

If you win your CAVC case, you may recover attorney fees from government under EAJA. The government pays your attorney fees (currently capped at $216.28/hour for 2024). EAJA only applies if you win and meet net worth requirements.

CAVC Timeline

Standard Case:

• Day 0-120: Notice of Appeal must be filed
• Month 2-4: Record Before Agency filed
• Month 4-6: Your principal brief filed
• Month 7-9: Secretary's response brief filed
• Month 9-10: Your optional reply brief filed
• Month 10-12: Oral argument scheduled (if requested)
• Month 12-24: Court decision issued

Total time: 12-24 months from filing to decision

Joint Motion to Remand Timeline:

• Day 0-120: Notice of Appeal filed
• Month 2-4: RBA filed
• Month 4-6: Your brief filed
• Month 6-7: VA agrees to JMR after reviewing brief
• Month 7: JMR filed and granted (typically within days)

Total time: 6-8 months if case settles via JMR (much faster)

Common CAVC Mistakes to Avoid

1. Missing the 120-Day Deadline: This is fatal. Calendar immediately and file before deadline. File Notice to preserve rights even if unsure about proceeding.

2. Appealing Without Strong Legal Issues: CAVC is for legal errors, not disagreements about evidence weight. Have experienced attorney evaluate appealable legal issues first.

3. Representing Yourself: CAVC is federal court with complex procedures and legal standards. Pro se appellants have very low success rates. Invest in experienced representation.

4. Expecting CAVC to Increase Rating Directly: CAVC doesn't grant service connection or increase ratings. They remand to Board or VA to apply correct law. You'll still need Board to issue new decision.

5. Not Considering Supplemental Claim Alternative: Sometimes Supplemental Claim with new evidence is faster, cheaper, and more likely to succeed than CAVC appeal.

6. Ignoring Settlement Opportunities: If VA offers Joint Motion to Remand, carefully consider accepting it. JMR gives you most of what you'd get from full victory, much faster.

Strategic Tips for CAVC Success

• Hire experienced CAVC counsel—this is not the place to go cheap or try it yourself
• Act quickly on 120-day deadline—don't wait until day 100
• Be realistic about your case—listen to your attorney's assessment
• Consider contingency fee arrangements—they align incentives with your success
• Be patient—CAVC cases take time, plan for 1-2 years
• Understand limited scope of review—CAVC reviews for legal errors, not factual disagreements
• Prepare for remand, not immediate grant—most successful appeals result in remand
• Consider the long game—a CAVC remand with good instructions often leads to eventual Board grant

Key Takeaways

• Strict 120-day deadline: Miss it and you lose CAVC rights forever
• Representation strongly recommended: CAVC is federal court, not for self-represented veterans
• Joint Motion to Remand common: ~70-80% of cases settle via JMR, not full decision
• Legal errors only: CAVC reviews for errors of law, not credibility or evidence weight
• Contingency fee options: Many attorneys work on contingency to minimize your upfront costs
• This is your last VA option: After CAVC denial, only Federal Circuit court remains
• Get attorney evaluation early: Consult within first 30 days to assess your case strength