Thomas Andrews has successfully represented veterans before the Court of Appeals for Veteran Claims and Federal Circuit Court of Appeals.
After appealing your Board of Veteran's Appeal decision to the Court of Appeals for Veteran Claims, the Court will require the VA to file the Board of Veteran Appeals’ decision within 30 days and the Record Before the Agency (RBA) within 60 days. The Board of Veteran Appeals’ decision is usually filed within a couple weeks. However, the RBA takes more time and frequently an extension of time.
The RBA is a copy of your Claims file and represents all of the records (medical and service), statements submitted by you, and decisions of the VA. The RBA will be compiled on a CD and sent to your counsel. Your attorney will review the RBA for records that support your arguments. This review might also lead to additional arguments.
After the VA has sent the RBA, the Court will likely set a time for a Pre-Briefing Conference. This is a telephone conference involving your attorney, the VA attorney and a representative from the Court (but not a judge). Prior to the actual conference, your attorney will submit a Summary of the Issues. This conference provides a time early in the process were your attorney can explain the case to the VA and determine if the two can reach an agreement. If the parties reach an agreement, the result will be a Joint Motion for Remand. This is a statement in which the VA admits they have made a mistake and requires the VA to take specific actions. This is submitted to the Court and then the Court issues an order saying that the case is dismissed and ordering the VA to take further action pursuant to the Joint Motion for Remand.
The overwhelming majority of the time, a victory at the Court is not the Court ordering that a higher rating or service-connection be granted. Instead, a win occurs when the Court finds the VA made a mistake and orders the VA to reconsider its decision and correct its mistake. A good example is when the VA ignored evidence that supports a veteran’s case. The Court will order the VA to issue a new decision that addresses the previously ignored evidence. This means you usually will not see your disability immediately granted service-connection or given a higher rating, but a return to the VA for re-analysis of your claim.
When your attorney and the VA cannot settle the case, your attorney will submit a brief to the Court. This brief will contain all the arguments you wish to make to the Court. After your brief has been filed, the VA has 60 days to file a brief explaining why the underlying decision is correct. It is common for the VA to request an additional 45 days to file this brief. After the VA’s brief has been filed, your attorney has 14 days to submit a Reply Brief.
Now it is time to wait. The Court has the briefs and will decide the case. The Court can either decide the case based solely on the written briefs or might schedule oral arguments, which will allow the judges to ask questions of your attorney and the VA attorney. Most cases are decided on the briefs without requiring oral arguments.
If you win, your case will probably be returned to the VA with directions to consider information it had not considered before. The VA is obligated to handle your case quickly; however, so many cases are returned to the VA on appeal that this still might take some time.
Also, your attorney will file a request that the government pay your attorney’s fees under the Equal Access to Justice Act.
If you lose, you may appeal the decision to the Court of Appeals for the Federal Circuit. Thomas has experience before the Federal Circuit, having recently won a case in Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016).
For a blog detailing recent Court of Appeals for Veteran Claims decisions, visit http://www.thomasandrewslaw.blogspot.com