In this week’s Facebook Live broadcast, CCK attorney Bradley Hennings, a former Veterans’ Law Judge, joins attorney Michael Lostritto and Accredited Claims Agent Rachel Foster in discussing the Board of Veterans’ Appeals and this stage of the VA disability claim process.
What is the Board of Veterans’ Appeals? How do veterans get their case to the Board?
A veteran’s claim reaches the Board of Veterans’ Appeals (BVA) following the appeal of an unfavorable decision from the regional office. The Board is the appellate body of the VA and it has the authority to overrule decisions made by the regional office. In the Legacy appeals process, veterans can file a Notice of Disagreement upon receipt of a rating decision from VA. In response to a Notice of Disagreement, VA will issue a Statement of the Case further explaining the reasons for which the decision was made and what evidence was considered. At this stage, veterans file a VA Form 9, also known as a substantive appeal, in order to appeal their claim to the Board.
Veterans must file their Form 9 within 60 days of the issuance of their Statement of the Case. Veterans are able to submit additional evidence and/or legal argument to help substantiate their claim for benefits with their VA Form 9. On the Form 9, veterans can also choose to participate in one of three different types of Board hearings, although hearings are entirely optional. Following the submission of a VA Form 9, veterans should receive a notice from VA certifying their appeal to the Board. The veteran’s appeal is then placed on the Board’s docket based on the date that the VA Form 9 was received by VA.
Who works at the Board of Veterans’ Appeals?
The Board of Veterans’ Appeals is comprised of attorneys and Veterans Law Judges, also referred to as Board members. These Board members ultimately have the final decision when it comes to veterans’ claims. Board members are appointed by the Secretary of Veterans Affairs and are approved by the President of the United States. Currently the Chairman of the Board is Cheryl Mason, who was appointed by the President in 2017 for a period of six years. Prior to her appointment, the Board was without a chairman for about seven years.
Hearings at the Board of Veterans’ Appeals
Veterans are not required participate in a hearing in order to have their claim adjudicated by the Board, however, if they do wish to have a hearing there are three options: a travel board hearing, video conference hearing, or an in-person hearing in Washington DC.
Advantages and disadvantages to choosing a hearing
Whether you should choose to attend a hearing depends upon the facts of your individual case. If you are unsure of whether a hearing would benefit your appeal, we encourage you to consult your representative.
One disadvantage to selecting a Board hearing is the large amount of time they often take to get scheduled, particularly the travel board hearing or the in-person hearing. Videoconference hearings tend to be scheduled more quickly than the other two options, but requesting any type of Board hearing could potentially delay your claim. On the other hand, a Board hearing may benefit a veteran’s claim because it affords them the opportunity to tell their story in person and allows the veteran to speak face-to-face with adjudicators.
Decisions from the Board of Veterans’ Appeals
The Board can either grant, deny, or remand a veteran’s claim for additional development.
When the Board remands a claim, it means that it believes additional information is required to properly adjudicate the case. A remanded claim is sent back to the agency of original jurisdiction, typically the regional office, for additional development. The Veterans Law Judge who remanded the claim could be seeking additional treatment or service records, a new compensation and pension examination, or a number of additional types of evidence. A claim may also be remanded if the Board believes that an error was made while the regional office was adjudicating it. Effective dates are preserved in the case of a remand. Keep in mind that a remand is neither a grant nor a denial of benefits.
When the Board decides to grant a veteran’s claim for benefits, the veteran’s file gets sent back to the regional office for implementation. The Board has the authority to determine effective date and disability ratings, but if it does not, it is the regional office’s duty to assign the veteran’s disability rating and the effective date of their claim, as well as to generate the retroactive award. In the case of the Board granting service connection and the regional office assigning effective date and disability rating, the veteran may appeal the regional office’s decision back to the Board if they are not pleased with the outcome.
If the Board denies a veteran’s claim, they may have the opportunity to appeal this decision to the Court of Appeals for Veterans Claims (CAVC). The CAVC is a federal court and a separate entity from VA. Veterans have 120 days from the issuance of their Board decision to appeal to the CAVC. The appeals process for the CAVC is different from that of appealing a rating decision; in order to appeal a Board decision, a legal error must have occurred when the Board was adjudicating the claim. Effective dates are preserved as long as the veteran files a timely appeal.
The Board of Veterans’ Appeals Backlog
The Board issues thousands of decisions per year. As of August 2018, the Board had issued over 75,000 decisions with its goal for fiscal year 2018 being 80,000. Based on these numbers, it is likely the Board will exceed its goal. The number of decisions issued by the Board in 2018 is nearly double the amount of decisions from 2017. This is thought to be a result of the increase in VA staff at the Board.
Docket order and expediting claims
The Board decides cases in docket order. Docket number is determined by the date VA receives the veteran’s Form 9, and is essentially their place “in line” for their appeal to be reviewed. For example, if a veteran submits one claim in 2014 and another in 2016, their 2014 claim will be adjudicated first.
VA claims at the Board of Veterans’ Appeals can be expedited in certain scenarios. Claims can be expedited based on financial hardship, terminal illness, or if the veteran is older than 75. To do this, veterans must submit a motion to advance on the docket to the Board. If the motion is granted, the Board will advance your claim to the front of the docket.
Appeals Reform and the Board of Veterans’ Appeals
Appeals reform is set to take effect in February of 2019. When this new appellate system is fully implemented, all new veterans’ claims will be adjudicated under the new system. Those who have appeals in the current Legacy system at that time can remain in Legacy.
The Board of Veterans’ Appeals will have three dockets under the new system:
- Direct to Board appeals allow the veteran’s claim to be sent directly to the Board. This option does not give veterans the choice to submit new evidence or request a hearing.
- Veterans who would like a hearing can elect to be entered into the Board’s hearing docket.
- Veterans who would like to submit additional evidence but would not like to attend a hearing can be entered into a separate docket.