Board of Veterans’ Appeals

Board of Veterans’ Appeals

Winning Appeals With Board of Veterans‘ Appeals
Winning Appeals With Board of Veterans‘ Appeals

On November 19, 1988, the Veterans’ Judicial Review Act under Article I of the U.S. Constitution created the new veterans court, the United States Court of Veterans Appeals. The Board of Veterans‘ Appeals (also known as ‘BVA’ or ‘the Board‘) is a part of the VA.  Members of the Board review benefit claims and issue decisions on appeals.

On March 1, 1999, the Veterans’ Programs Enhancement Act of 1998 changed the Court’s name to the name it now bears, the U.S. Court of Appeals for Veterans Claims (CAVC). The CAVC is part of the United States judiciary and is NOT part of the Department of Veterans Affairs (VA).

Board of Veterans’ Appeals

Until the U.S. Court of Appeals for Veterans Claims was established in 1988, the Nation’s Veterans had no court of law where they might appeal the Government’s decisions on veterans benefits. Interestingly, the CAVC is among the few Federal Courts that have been created since the ratification of the Constitution.

The principal office of the U.S. Court of Appeals for Veterans Claims is in Washington, D.C.  Although the CAVC is authorized to “sit” (travel to different jurisdictions) anywhere in the United States, it does so on an extremely limited basis. But do not fret, you are not required to travel to Washington, D.C. in order to have your case adjudicated.

The CAVC will accommodate your hearing, if necessary, through video conference. In fact, in establishing the CAVC, for only the sixth time in the history of the United States, Congress established a court of national jurisdiction with no geographical limits.

The Court of Appeals for Veterans Claims is authorized seven permanent, active judges, and two additional judges as part of an expansion program. Judges are generally appointed for 15-year terms, and each judge has the option upon retirement to agree to be available for further service as a “recall-eligible Senior judge.”

What Is A Time Frame For A Claim With The Department of Veterans Affairs (VA)

For better or for worse (usually worse) some Veterans and their family members are extremely familiar with the claims process within the Department of Veterans Affairs (VA). Unfortunately, the system is well-known for its snail-like pace, complicated decisions, and convoluted appeals processes. That is why consulting an experienced veterans’ disability attorney is so critically important.

Following the filing of your initial claim with the Department of Veterans Affairs (VA), which is initially determined by your local Regional Office (RO), you may need to file an appeal of the RO’s decision.

Which historically was done by filing a Notice of Disagreement (new appeal forms were introduced by the VA in February 2019.  So please make sure you are using the correct forms or the VA will reject them).

The RO would then review your claim for a second time. If the RO again decided to deny your claim, the RO would generate a Statement of the Case (SOC) (or in some instances, if on remand, a Supplemental Statement of the Case (SSOC)).  In which the reasons and bases for the denial would be set forth.

When Do I File An Appeal To the Board of Veterans’ Appeals (BVA)

Upon receipt of the SOC you would then have sixty (60) days, from the day that your local RO mailed you the SOC to file an appeal to the Board of Veterans’ Appeals (BVA).

Please note that a new claims adjudication process was implemented by the VA in February 2019. Under the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), the appeal process has dramatically changed.

Do You Have Options When Filing With the Board of Veterans’ Appeals?

Under the new process, after receiving an unsatisfactory decision from the RO, you must determine what specific appeal “lane” you wish to enter. Under the AMA, you may now file a Supplemental Claim, where you can provide “new and relevant evidence” that the RO will consider.

Alternatively, you can select the Higher-Lever Review lane, where no additional evidence can be submitted, but your appeal will be reviewed by an experienced RO designated reviewer who will conduct a brand new review of the issue(s) and evidence in your claim.

These appeal options occur at the RO level and will typically need to be filed within one (1) year from the date of the date on your decision notice letter to preserve your right to receive the maximum benefit possible. However, there is another option for appealing an unfavorable RO decision, the Board of Veterans’ Appeals BVA.

Board of Veterans’ Appeals BVA is the next level up the chain of the VA claims adjudication process. It is important that you consult an experienced veterans’ disability attorney to ensure the appropriate appeal lane is selected based upon your unique case and circumstances.

How Do I Start?

Once you decide you want to appeal the RO’s decision to Board of Veterans’ Appeals (as opposed to selecting the Supplemental Claim lane or the Higher-Level Review lane), you would file the appropriate form (the new Notice of Disagreement, Form 10182, for VA decisions received after February 19, 2019).

This must be done within the sixty (60) day time limit if contested, one (1) year if uncontested, or the specific filing time limits as may be listed in your decision notice letter. Deadlines are strictly enforced at Board of Veterans’ Appeals, so carefully review your specific notice decision letter and contact us right away for a free consultation.

Board of Veterans’ Appeals is physically located in Washington, D.C. The legal purpose of the BVA is to “to conduct hearings and dispose of appeals properly before the Board in a timely manner.”

Those of us even remotely familiar with the VA claims appeal process have learned that Board of Veterans’ Appeals has not lived up to its stated purpose. Nevertheless, the AMA was implemented as an attempt to address the unacceptably long appeal wait times our Veterans, and their families, currently experience.

An appeal to Board of Veterans’ Appeals will be considered by a Veterans Law Judge (or a Board Member). When adjudicating these appeals, the Veterans Law Judge will conduct what is known as a “de novo” review, which simply means the Veterans Law Judge will review the evidence in its entirety and anew, without any deference to the RO.

When submitting your appeal form to the BVA, you are required to select 1 of 3 new Board Review Options:

  • 1) you may select to skip a hearing and not provide any additional evidence (this typically results in a quicker decision, as compared to the other Board Review Options);
  • 2) you may select to skip a hearing, but submit additional evidence for review (within ninety (90) days of filing the appeal);
  • or 3) you may select a hearing and an opportunity to submit additional evidence in support of your claim within ninety (90) days of your hearing (this option will likely take the longest out of the Board Review Options).

As you can see, this is another portion of the appeal process where it is imperative that you have an experienced veterans’ disability attorney helping you make the correct choices in the appeals process.

After the BVA reviews new evidence, if any, and conducts a hearing, if one was requested, a decision will be issued. The decision of the BVA will be in writing and will set forth specifically the issue or issues under appellate consideration. The decisions are required, by law, to include the following:

  • (1) Findings of fact and conclusions of law on all material issues of fact and law presented on the record;
  • (2) the reasons or bases for those findings and conclusions;
  • (3) a general statement reflecting whether any evidence was received and informing the appellant that any such evidence was not considered by the Board and of the options available to have that evidence reviewed by the VA; and
  • (4) an order granting or denying the benefit or benefits sought on appeal, dismissing the appeal, or remanding the issue or issues.

How Many Claims Are Granted?

In the Veterans Law Judge’s Order, your claim may be granted (this does not happen frequently), your claim could be denied, or your claim may be remanded. Remands are the most frequent result of BVA decisions. A remand typically sends the case all the way back to the RO with specific instructions.

Oftentimes a remand will request new evidence be submitted or reviewed. A remand could require additional development of a claim be pursued. At the end of the day, a remand keeps your claim alive.

Additionally, a remand will provide the Veteran the benefit of the VA’s duty to assist, which can help in the development of a Veteran’s claim by requiring the VA to help in locating and acquiring needed evidence. If the BVA grants your appeal, it still may have to go back to the RO for implementation, in accordance with the directives set forth in the BVA decision.

What If I Lose?

If you lose at the BVA (meaning your claim was not granted, or your claim was not remanded, but instead your claim was denied), you again have important decisions to make. You could file a Supplemental Claim by adding new and relevant evidence, within one (1) year of the BVA denial.

Second, you could appeal to the U.S. Court of Appeals for Veterans Claims (CAVC). An appeal to the CAVC, a completely separate entity from the VA, would need to be done within 120 days of the issuance of the BVA’s decision and would be accomplished by filing a Notice of Appeal with the CAVC.

What If I Need Help?

As you can see, the VA process is a confusing gauntlet of hazards, deadlines, and uncertainty. The new AMA, although presumably done with good intentions, may add to the confusion–at least for the foreseeable future. It is crucial that you have an attorney who knows the law and has the resources and commitment to win you the benefits you have earned and deserve. Please contact us anytime for a free consultation.

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Far too often, we represent veterans who need a medical opinion or supporting statements that are not in the file. Other times, a failure on behalf of the VA needs to be pointed out and addressed. Do not risk losing your case due to substandard representation.

Call us today at 800-861-7262 for a free consultation or fill out the contact box.

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