Decoding Decisions from the Board of Veterans’ Appeals
Decisions coming from the Board of Veterans’ Appeals (BVA) can be difficult for some veterans to decode. Even if the outcome is understood, many wonder what the next step of the process entails. Today’s Facebook Live segment can guide you through understanding your Board of Veterans’ Appeals decision, what certain terms mean, and what veterans can do if the findings are unfavorable.
The Board of Veterans’ Appeals
The Board of Veterans’ Appeals is the appellate body of the Department of Veterans Affairs that has the ability to review and reverse decisions issued by the Regional Office (RO). The Board of Veterans’ Appeals consists of Board members, also called Veterans Law Judges, who are the adjudicators at this level of the Veterans Benefits Administration.
The Board bases its decisions on the evidence of record that was before the Regional Office—along with any new evidence submitted after the RO’s adjudication, such as medical evidence or a hearing testimony. Additionally, the Board of Veterans’ Appeals reviews previous decisions to ensure that VA law was applied correctly to the claim.
When adjudicating, the Board of Veterans’ Appeals conducts a review of claims “de novo,” or anew. A “de novo” review means Veterans Law Judges review the evidence of record again in its entirety. The Board does not need to show deference to the Regional Office’s decision when adjudicating claims, meaning that they are not bound by any findings issued by the RO. The Board of Veterans’ Appeals can reverse decisions made by the RO based on its “de novo” review.
Grants from the Board of Veterans’ Appeals
When the Board of Veterans’ Appeals decides on a claim, it can decide to grant the benefits sought on appeal. Usually, if the Board grants a claim, it is sent back to the Regional Office for implementation. For example, the Board may grant service connection, but the file is sent back to the RO to determine the effective date of the claim as well as the disability rating warranted. In the event of an increased rating claim, however, the Board will assign the veteran a specific rating and instruct the RO to determine the proper effective date.
Veterans do not immediately receive their retroactive benefits, or back pay, following a grant from the Board of Veterans’ Appeals. Usually, these benefits are paid following the issuance of a rating decision from the Regional Office. VA does not operate on any specific timeline in regards to awarding back pay, and wait times can vary depending on the complexity of the veteran’s case. Keep in mind that the period during which you are awaiting your award of benefits will be included in your retroactive sum.
Remands from the Board of Veterans’ Appeals
The Board of Veterans’ Appeals remands a veteran’s claim when the Veterans Law Judge reviewing the claim believes that additional information is needed to make a final decision. In the event of a remand, the Board sends the claim back down to the Regional Office with instructions detailing what information is needed, and ordering the RO to acquire that information before a new decision can be made.
Are Remands a Good Thing at the Board of Veterans’ Appeals?
Essentially, the only unfavorable outcome at the Board are final denials. Remands cannot be appealed, only final decisions. A remand triggers VA’s duty to assist a veteran in developing additional evidence for his or her claim, meaning VA must exert reasonable effort to obtain that evidence. A remand gives the veteran “another bite at the apple” in their pursuit of VA benefits.
The Board of Veterans’ Appeals remand instructions can be found at the end of your decision letter. Such instructions may include sending the veteran a VCAA notice, which identifies what evidence VA needs from the veteran in order to decide the claim. For example, VA may request that the veteran submit his or her work history before the Board can make a determination regarding Total Disability based on Individual Unemployability benefits. Other remand instructions may require the veteran to attend a Compensation and Pension examination to address evidence specifically mentioned in these instructions. The Regional Office is not bound by a time requirement to implement remand instructions.
Decisions on Remanded Claims
If, after implementing remand instructions, the Regional Office denies a veteran’s claim, VA will issue a Supplemental Statement of the Case (SSOC). An SSOC is essentially an explanation of why VA decided to deny the claim again. The claim then goes back to the Board for a final determination. If a remanded claim is granted at the Regional Office level, the veteran will receive a new rating decision assigning a disability rating and effective date.
In some situations, VA will only grant some, not all, of the benefit(s) on appeal. These are called partial grants. In this situation, the veteran will receive an SSOC explaining the partial denial, and a rating decision granting them partial benefits. Additionally, if a veteran has multiple claims on appeal VA can issue a grant of benefits for one condition, but remand or deny another. For example, a veteran seeking service connection for PTSD and a back condition may receive a grant of benefits for the PTSD, but a remand for the lower back condition.
In the event the Board of Veterans’ Appeals issues a denial, that decision becomes final within the Veterans Benefits Administration. Veterans are able to appeal a Board denial to the Court of Appeals for Veterans Claims, which is a separate entity from VA. Veterans can also appeal partial grants.
Disagreeing With Board Decisions
When veterans disagree with their Board decision, they have the option to appeal to the Court of Appeals for Veterans Claims (CAVC) within 120 of that decision. If you miss this appeal timeline, the most likely option you have is to reopen your VA claim. The Court of Appeals for Veterans Claims is separate from VA, and has the authority to review the Board’s decisions. Veterans who choose to continue on with their appeal to the CAVC can preserve the original effective date of their claim.
Aside from appealing to the CAVC, veterans may request a Motion for Reconsideration. A Motion for Reconsideration effectively requests that the Board reconsider aspects of the case you feel were not adequately addressed in the decision. If a veteran’s Motion for Reconsideration is denied he or she may still appeal to the CAVC, but this may lengthen the process.
Another action veterans can take in the event of a Board denial is a motion to vacate. A motion to vacate essentially asks the Board to “wipe the slate clean” in the event of a procedural error. For example, a motion to vacate may be warranted if VA did not provide the veteran with the required 30 days to respond to a Supplemental Statement of the Case before issuing a decision. If a Board denial was a result of a Clear and Unmistakable Error and your appeal period has since passed, you can file a request for revision based on clear and unmistakable error. Keep in mind that a motion to vacate is not an appeal of the Board’s decision, nor is a CUE.
Appealing to the Court of Appeals for Veterans Claims
To appeal a decision from the Board of Veterans’ Appeals to the Court of Appeals for Veterans Claims, the first thing claimants must do is file a Notice of Appeal. This form asks for some general details about your case, such as the date of the Board decision and contact information. Following this submission, VA will send the veteran a copy of his or her claims file. Learn more about the appeals process at the Court of Appeals for Veterans Claims in our blog: Appeals to the Court of Appeals for Veterans Claims.
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