Misfiled VA Appeals Addressed by Full CAVC Court

Veterans whose claims are denied at the Board of Veterans’ Appeals (Board) may appeal to the U.S. Court of Appeals for Veterans Claims (Court), but they must do so within 120 days of the Board’s decision. If the appeal is not filed within 120 days, the Court will not be able to hear the appeal. The Court’s rule is quite clear that the appeal must be filed with the Court and not with either the Board or a VA regional office.

One of the most litigated issues in recent years is what happens when the veteran files his appeal within the 120 day appeal period, but he files with either the Board or a regional office rather than with the CAVC Court.

Rickett v. Shinseki

In a rare decision in which all of the Court’s judges participated, the Court found that, in some cases, it would agree to hear the appeal. In Rickett v. Shinseki, the Court stated that it would consider the following factors in determining whether the hear the appeal:

  • Did the veteran send in his appeal within 120 days of the Board’s decision?
  • Did the veteran make clear that he wanted to make an appeal to the Court, rather than a motion for reconsideration by the Board?
  • Did the VA have notice that the veteran wanted to make an appeal to the Court?
  • Did the veteran make a minimum showing of “due diligence”? In other words, was there a good reason that he filed his appeal in the wrong place and, after he realized that he filed the appeal in the wrong place, did he make an effort to file the appeal at the Court?

Thus, in every case where the veteran files an appeal to the Court within 120 days of the Board’s decision, but files in the wrong location (i.e., a place other than the Court), the Court will evaluate each of these four factors to determine whether it will hear the veteran’s case.

Help with Appeals to the U.S. Court of Appeals for Veterans Claims (CAVC)

If you need assistance with appealing a decision of the Board of Veterans’ Appeals to the CAVC, we are here to help. We’ll help you with each step of the process — including filing your appeal in time and in the right place. Call Veterans Help Group at (855) 855-8992 or complete our free veterans benefits case evaluation form.

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