How to Approach Board of Veterans’ Appeals Denials
It’s best to approach Board of Veterans’ Appeals Denials with optimism. Since they are somewhat like trials and give attorneys wide latitude, Board of Veterans’ Appeals (BVA) proceedings are often successful. That said, these appeals are not always successful.
Denials can be incredibly frustrating because the Veteran, or Veteran’s family members, have waited so long and gone through so much to obtain benefits.
In the long VA benefit process, the worst thing you can do is give up. So, even if the BVA denies your request, you have some excellent options.
The Road Less Traveled
Some of the options are not attractive ones, at least in most cases. An experienced attorney can give you solid advice on this point that is specific to your case.
If the BVA denies the claim, some applicants do nothing and allow the claim to die. Generally, ignoring a problem and hoping things will get better is a pretty bad approach to any issue.
BVA appeals are usually no different. It makes little sense to get so close to the finish line and then disqualify yourself from the race.
Still, sometimes this strategy works. Depending on the type of case and denial, the claimant may be able to re-file the case. Starting over, especially if new evidence is available, may be the best idea.
The claimant may also file a petition for reconsideration. Generally, these petitions are a waste of time. When you were little, if your mother said you could not watch TV, she probably would still say “no” if you asked her again 15 minutes later. In many ways, the BVA operates in the same fashion.
In other cases, however, reconsideration is an excellent idea. While the BVA reconsiders the matter, the claimant gets more time to decide how to proceed. Additionally, turnover at the BVA may affect the outcome of your appeal.
If new appointees take over, they may look at the claim with fresh eyes. Keep in mind that the clerks often affect the way these decisions come out, and there is plenty of coming and going at that level.
Formal BVA Appeals
In most cases, the next step after a BVA denial is a formal appeal to the Court of Appeals for Veterans Claims (CAVC). Typically, claimants do not need to show much evidence to obtain a CAVC appeal hearing. It is basically a second opinion.
The Rule 33 settlement conference is a big plus here. These conferences are usually automatic in CAVC appeals cases. Generally, a CAVC staff attorney and a VA attorney meet with the claimant and the claimant’s attorney in a last-ditch effort to work out a settlement.
Since so much is at stake and it is such a high-level conference, these meetings are often successful. If that is not the case, the claimant usually files an appeal brief and the claim keeps moving forward.
Clear and Unmistakable Error (CUE) cases work a bit differently. CUE usually occurs when the BVA applies the wrong law or regulation to the facts.
The retroactivity rules are not the same in CUE cases as in other appeals. So, the claimant may be entitled to substantially more benefits in CUE appeals.
Furthermore, a CUE appeal may be able to revive a case that has been dormant for quite some time. Many times, the BVA denies a case, the claimant’s attorney gives up, the claimant finds another attorney, and that lawyer finds actionable CUE in the record.
Work with Assertive Attorneys
A BVA denial may feel like a punch in the stomach, but your attorney can help you hit back. For a free consultation with an experienced veterans disability lawyer, contact Cameron Firm, PC at 800-861-7262 or fill out the contact box to your right. We are here to successfully represent veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.