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Monday, September 1, 2014

Higher VA Appeals

If you disagree with your Rating Decision for VA Disability, you can submit appeals to have your VA Disability Rating increased.

There are multiple levels of appeals, and each level must be completed in order. We thoroughly discuss the first 2 levels in our discussion of VA Appeals on our site. Level 1 is the Board of Veterans’Appeals, and level 2 is the US Court of Appeals for Veterans Claims. These two levels are appeals that occur within the VA system itself. After you’ve completed level two, if you are still unhappy, you can appeal to a federal court.

Below are the two levels of VA appeals to federal courts that you can pursue and what you need to do to submit an appeal. We do NOT, however, recommend appealing to a federal court without some form of legal representation.

Level 3.

Level 3 of VA appeals is the US Court of Appeals for the Federal Circuit. You cannot appeal to this court for just anything, however.

The US Court of Appeals for the Federal Circuit will only review your case IF:

- There is a disagreement about the interpretation of the law. Much of the VASRD is left up to interpretation, but if you disagree with something that is clearly a fact, not an interpretation, your case will get thrown out of this court.
- You feel that the US Court of Appeals for Veterans Claims made a decision contrary to the laws that it is required to follow.
- There is evidence that a law that was used to determine the US Court of Appeals for Veterans Claims’ decision conflicts with other laws that would give your case a better outcome. Sometimes there are laws that override other laws in certain instances, but these cannot be contested. There can be nothing in the laws themselves that can logically decide which law should be dominant in your case for this argument to proceed.

If you submit an appeal for any other reason, the Federal Circuit court could fine you for filing a frivolous petition. Just be careful and make sure your argument is sound. This is where having legal representation could really help.

Remember that if you have new evidence, you have to start over at the local VA. You cannot submit new evidence to this court, or your case will be thrown out.

To apply to the US Court of Appeals for the Federal Circuit, you must submit your appeal within 30 days of the official judgment of the US Court of Appeals for Veterans Claims. If it is not received within 30 days, it will be thrown out.

To apply to the US Court of Appeals for the Federal Circuit, you actually submit a Notice of Appeal to the US Court of Appeals for Veterans Claims. For some reason, all appeals to the Federal Circuit court are processed through the Veterans Claims court instead of being sent directly to the Federal Circuit court.

In addition to the Notice of Appeal, include a copy of the United States Court of Appeals for Veterans Claims’ decision. You could also include an Information Sheet, but it is not required. Not a bad idea to include it, though.

The Federal Circuit court charges $450 to file an appeal, but since it is processed by the US Court of Appeals for Veterans Claims, the payment is made out to them. It can either be paid by check or money order to the U.S. Court of Appeals for Veterans Claims. If you honestly can’t afford to pay the fee, you can file a Forma Pauperis form instead.

The Federal Circuit court also required for you to submit an Informal Brief. This is where you state your issues and argue your case. This must be submitted within 21 days of your case being served, and it cannot exceed 30 pages in length.

The US Court of Appeals for the Federal Circuit provides a Guide for Pro Se Petitioners and Appellants that contains further detailed information about applying to this court, writing an Informal Brief, and what to expect after you submit your appeal.
Now after you receive the Federal Circuit court’s decision, and you’re still not happy, you can file a petition for rehearing, but you’re case will most likely not be reopened. They rarely will reconsider a case. After submitting a petition for rehearing, you can move on to Level 4.

Level 4.

This is it. The last level: The US Supreme Court. Can’t get any higher than that.

After you’ve received your ruling from the Federal Circuit, you can appeal to the Supreme Court.

The Supreme Court only hears 1% of all cases that are filed, so it is most likely that your case may never be heard. The Supreme Court only considers cases where:

 - Two lower courts have made completely different rulings on the exact same issue. The issue must be important enough that it would affect many people for the Supreme Court to deem it worthy.
- The issue involved is extremely important to the public and would affect a lot of people.

If your case doesn’t definitely fit one of these categories, then don’t waste your time submitting an appeal.

If your case does, and you wish to proceed, then you must submit a Writ of Certiorari within 90 days of the final judgment of the Federal Circuit court. Full directions and all the necessary forms can be found in the Guide For Prospective Indigent Petitioners For Writs of Certiorari.

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