Reviewing the Record Before the Agency (RBA) may be the most important thing you do in your CAVC appeal.
May 13th, 2019
Contributor: Jennifer Steel
Every appeal to the US Court of Appeals for Veterans Claims (CAVC) begins by filing a Notice of Appeal with the CAVC.
Shortly after receiving a Notice of Appeal, the CAVC assigns a docket number. The CAVC Docket Number is the reference number that is used throughout the course of the court appeal to specifically identify the appeal filed.
Within 30 days of filing an appeal, an official (redacted) copy of the BVA’s Decision is filed with the Court. Often, a paralegal for the Office of General Counsel (OGC) files this document, even before an attorney for the VA is assigned. Next, an OGC attorney will file an appearance, identifying himself or herself as the VA’s Attorney for your appeal.
Within 60 days of docketing, the VA’s Attorney will forward to our office a copy of the Record Before the Agency (RBA) on CD. The RBA is supposed to include every document contained in the VA Claim File and available to the Board of Veterans Appeals at the time the BVA Judge rendered a decision in your appeal.
What we do when we get the Record Before the Agency (RBA).
Because the RBA is often incomplete, and because we are often unable to verify that everything before the BVA at the time of the Board decision is in the RBA, the law firm of Attig | Steel also requests a separate copy of your VA Claim File (C-File), from the VA Records Management Center in St Louis.
Our clients sign a Privacy Act Waiver, which allows us to proceed under the Freedom of Information Act (FOIA) to obtain a veteran’s C-File. Upon receipt, we forward a copy of the C-File to our clients, for their review and use.
Reviewing the Record Before the Agency to Comply with the Court's Rule 10.
Attig | Steel takes great pains to review both your C-File and the RBA, to compare the two (2) documents. Absent agreement on what constitutes the RBA, the appeal does not continue.
This is an important step for our clients.
Typically, a federal district court will certify the record to the federal appellate court. However, the BVA is not a federal district court, it is an administrative part of the VA itself. So, not only is the BVA not an independent agency, the Veterans Law Judges are a part of the VA system.
In addition, the BVA's record keeping systems are so complicated and unreliable that the BVA often issues decisions without actually reviewing documents filed by the veteran or his or her representative.
Equally important, is our ethical duty to comply with the Court Rules.
CAVC Rule 10 requires attorneys to verify that everything in the C-file at the time of the BVA decision is, in fact, in the RBA at the CAVC. This rule serves a critical function - it ensures that when the CAVC reviews the BVA decision in your case, the Court is assured that it has the complete record from the lower tribunal.
Because it is so important, paralegals at Attig | Steel review C-Files and proposed RBAs, page-by-page. They create indexes for your attorney to use throughout your appeal, organize the documents or “map” the case for your attorney’s review, and (much!) more.
It is a task often performed by an attorney, but we train our paralegals to perform the task, which saves the US Government money if we succeed in your appeal and later file an EAJA petition for attorney fees and costs.
Additionally, it allows us to have an extra set of eyes on the C-File and RBA, to help catch inaccuracies or errors in the record.
When the C-File and RBA reviews are complete, your attorney will review the files, indices, and notes provided by the paralegals. When we find inconsistencies in the RBA that are material to the appeal, we may dispute the RBA.
If the missing pages are irrelevant to your appeal because, for example, the missing pages are blank or duplicative, or relate to a VA Home Loan or educational assistance, we may not file a formal dispute
Despite Rule 10, and the attorney’s duty to ensure that the record is accurate and complete for the CAVC, the Court allows just 19 days (from the date the Record Before the Agency (RBA) is dropped in the mail by the OGC’s staff), to review the RBA for errors.
Because RBAs and C-Files are often thousands of pages long, we generally seek an extension of 30-45 days for review. This enables our staff, and our attorneys, adequate time to look at both documents. Generally, this prevents us from missing relevant or necessary data otherwise excluded from the Court’s record on review.
If there is a dispute, the Court will stay the appeal - in other words, place the appeal in a 15 day "holding pattern" - to enable the VA's attorney at the Office of General Counsel to correct the errors in the RBA, or for the attorneys to otherwise come to an agreement about the record.
During this extended time frame, we forward copies of the C-File and the RBA to our clients. We understand that veterans know their history better than anyone. If our clients review the files and find them lacking, we want to know. Even if you don’t have the time or inclination to review the files during your appeal, owning a copy of your Claim File and CAVC Record Before the Agency can be critical to your ability to prove future claims or appeals.
Our Record Review process is sets Attig | Steel apart from other Court attorneys.
Ultimately, our goal in the record review process of a CAVC appeal is to ensure that we know the facts of your VA benefits case on appeal, better than the Department of Veterans Affairs attorney.
We look for errors that aren’t necessarily apparent on the face of the BVA decision, and explore issues the BVA should have addressed, but didn’t.
We do this because our goal in your appeal to the CAVC is not just to get an easy remand back to the BVA, but to identify, isolate, and remedy core legal issues that are keeping your claim or appeal in the VA’s "hamster wheel."
It is the facts discovered in this record review and comparison that also helps us look for precedential cases involving the same facts or legal issues as your case.
As the late Justice Scalia said about the record in a federal appeal: an attorney's knowledge of the proceeding in the lower tribunal [in our case, the BVA] should be "utterly complete and meticulously organized." (JUSTICE ANTONIN SCALIA &BRYAN A.GARNER, Making Your Case: The Art of Persuading Judges 151 – 152 (2008)).
An attorney “cannot overstate the importance of the contents of the record on appeal: it is, quite literally, the playing field (or battlefield) upon which the appeal will be fought, and its boundaries are, by and large, those of the appeal itself." (MAYER BROWN, Federal Appellate Practice 204 (2d ed. 2013))
So, when we tell a client, “Nothing much will happen in your appeal for the first 90 -120 day time period” in your appeal, what we mean is, we are doing critical, behind-the-scenes (often thankless) work which won’t be apparent to you until our attorneys put pen to paper to advocate for YOU in your claim.