A denial from the Board of Veterans' Appeals feels like the top of the ladder. A Veterans Law Judge looked at your case and said no. Who is left?

A federal court is left. The U.S. Court of Appeals for Veterans Claims is an independent court, outside VA, and it exists to review Board decisions. Many veterans never use it, often because they do not know it is there or assume they cannot afford it. Both assumptions are usually wrong.

The deadline: 120 days

Under 38 U.S.C. 7266, you have 120 days from the date the Board's decision is mailed to file a notice of appeal with the Court. That is far shorter than the one-year windows inside VA, and it is the deadline veterans most often miss.

Calendar it the day the decision arrives. If you are thinking about asking the Board to reconsider its decision instead, talk to a representative first about how that affects the Court deadline.

What the Court does and does not do

The Court is not a second Board. It does not hold a new hearing, take new evidence, or decide your rating from scratch. It reviews the record that was before the Board and asks whether the Board got the law right, whether its findings of fact were clearly erroneous, and whether it explained its reasoning adequately.

That last point matters more than any other. The Board must give reasons and bases for its findings, meaning an explanation a veteran can understand and a court can review. A decision that ignores favorable evidence, relies on an inadequate examination, or announces a conclusion without explaining it is vulnerable.

In a November 2023 report, the Government Accountability Office found that the Court had remanded about 80 percent of the Board decisions appealed to it over the prior three fiscal years, often because the Board's explanation was inadequate.

What a win usually looks like

Most successful appeals end in a remand rather than an outright grant. The Court, or the parties by agreement, sends the case back to the Board to fix specific errors. Many cases are resolved by a joint motion for remand, in which VA's lawyers agree the Board erred and both sides ask the Court to send the case back.

A remand is not a loss dressed up as a win. It returns the case with instructions, it keeps your original effective date alive, and it often gives you the chance to submit additional evidence and argument to the Board. Many remanded cases are later granted.

What it costs

The Court charges a modest filing fee, which can be waived for financial hardship.

Attorney fees at the Court work differently than they do inside VA. Under the Equal Access to Justice Act, when a veteran prevails, which can include a remand based on VA error, and the government's position was not substantially justified, the government can be ordered to pay the attorney's fees. For that reason, many attorneys who practice at the Court handle these appeals without charging the veteran for the Court work. Ask any attorney you speak with exactly how fees will work, both at the Court and afterward.

The alternative: a Supplemental Claim

Under the current appeals system, a Board denial is not the end of the road inside VA either. You can file a Supplemental Claim on VA Form 20-0995 with new and relevant evidence, generally within one year of the Board's decision, and preserve your effective date.

So the real question after a Board denial is which path fits the problem:

• If the Board made a legal error or failed to explain itself on the record it had, the Court is often the stronger path.
• If the problem is that the record is missing evidence, such as a medical opinion that was never obtained, a Supplemental Claim may get there faster.
• Sometimes the answer is both, in sequence. You generally cannot pursue both on the same issue at the same time, and the timing rules matter, so get advice before choosing.

Beyond the Court

Decisions of the Court of Appeals for Veterans Claims can be appealed to the U.S. Court of Appeals for the Federal Circuit on certain legal questions, and from there to the Supreme Court. Those cases are rare, but they shape the rules for every veteran. Many of the protections I write about came out of them.

What to do with a Board denial

• Write down the date on the decision and count 120 days. Then count one year, for the Supplemental Claim option.
• Read the Board's reasons and bases section. Look for evidence it did not discuss and conclusions it did not explain.
• Talk to an attorney who practices before the Court well before the 120 days run out.

A Board denial is not the last word. For a lot of veterans, it is the first time a federal judge gets to look at how VA handled the case.

The Jacks Law Group represents veterans nationwide and worldwide from offices in Henderson and Las Vegas, Nevada. David R. Jacks, Jr. is a VA-accredited attorney and a 100% permanently and totally disabled U.S. Army veteran. If you want help with a claim or an appeal, call to schedule a consultation.

Disclaimer: This blog is for general information only. It is not legal advice, and reading it does not create an attorney-client relationship. Every VA claim turns on its own facts, and rates, rating criteria and program rules change over time. For advice about your own situation, speak with a VA-accredited attorney.