Motions to Vacate

Summary

When a veteran has received a decision on their appeal, they can request to have that decision vacated. Vacating the decision nullifies the decision and allows it to get a new decision.

Reasons for vacatur

A veteran can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why they believe they were denied due process of law during your appeal. For example, they were denied their right to representation through action or inaction by VA personnel, they were not provided a Statement of the Case or Supplemental Statement of the Case, or they did not get a personal hearing that they requested. They can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. The Board places no time limit on filing a motion to vacate, and a veteran can do this at any time. However, if the veteran also plans to appeal this decision to the Court, they must file their motion within 120 days from the date of this decision.

Source: https://www.va.gov/vaforms/va/pdf/VA4597.pdf

Appeal Streams

Original appeals would get the stream type of "Original". If a vacate is granted, those vacaturs would be processed on a "Vacate" appeal stream. If the vacate type is "De Novo", that would result in a third "De Novo" appeal stream. See types of vacatur below for more information.

Types of Vacatur

Straight Vacate

A straight vacate would be prompted internally by the Litigation Support team if they notice an issue with processing of the original appeal. For a straight vacate, the decision issues selected for vacatur from the original appeal would be contested on the vacate stream, and decided with a disposition of vacated. New decisions (for example, granted or denied) would not be added in addition, only the vacated ones.

Vacate and Readjudicate

If the vacate type is "Vacate and Readjudicate", then on the vacate stream in addition to adding the decisions to vacate the original decisions, new decisions for the issues would be added. So a request issue contesting the original decision would get both a vacated decision, and a new decision. For example the issue could also get the decision of being "granted" on the same vacate appeal stream. A new hearing would not be required.

Vacate and De Novo

If the vacate type is "Vacate and De Novo", then the original decisions would be contested on the vacate stream and decided with a disposition of vacated. However, new decisions for the issues would not happen on the vacate stream. Instead, the issues would be added to a new appeal stream called "De Novo", which would allow for the full appeal process to take place again, including a hearing or other admin actions.

People and Process

The Board's Mail Team would initiate a vacatur requested by the veteran. In addition, the Litigation Support team can initiate a vacatur, which would most likely be used for a straight vacate.

The Motion To Vacate task would then get assigned to the Litigation Support team who would review the vacatur and make a draft proposal to send to the Judge for review.

The proposal would have a recommendation to deny, dismiss, or grant the vacatur, either fully or partially.

Then the Judge reviews the proposal, and makes a decision on whether to deny, dismiss, or grant the vacatur. If the Judge denies or dismisses the vacatur (which would include withdrawals requested from the veteran), the Motions Attorney with Litigation Support would finalize the decision and complete the process, including informing the veteran.

If the Judge chooses to grant the vacatur, they have the option to do a full grant, vacating all of the decisions on the original appeal, or doing a partial grant, which would apply to a subset of the decisions on the original appeal.

After the Judge chooses to grant a vacatur, a new vacate appeal stream would be created and assigned to a Decision Drafting Attorney. The attorney would then review the vacated decision issues, and if they believe there was a mistake, they can send the appeal back to the Judge to make corrections.

If the attorney proceeds with the vacatur, and if the vacatur is a Straight Vacate, or a Vacate and De Novo, they would proceed to writing a draft decision document and sending it to the Judge. If the vacatur is a Vacate and Readjudicate, the attorney would also select the new dispositions to add to the vacate appeal stream before writing the draft decision document.

From there, the attorney sends the draft decision document to the judge, where it will continue with the regular Judge Checkout flow. Once a final decision document is created, it gets dispatched.

If the vacate type was Vacate and De Novo, after the vacate stream appeal is dispatched and outcoded, a new De Novo appeal stream is created. The attorney would add new decisions for the issues on the De Novo appeal stream, draft a decision document, and send that to the Judge to complete.