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Understanding Your BVA Decision

1) How is the Board of Veterans Appeals (BVA) different from the rest of the VA claims process?

2) What are Board decisions based on?

  • “De Novo” Review

3) New Format of BVA Decisions

4) Board (BVA) Grants

  • “Implementing” the Decision
  • Does the BVA give disability ratings?
  • When do benefits start after a Board grant?

5) Board (BVA) Remands

  • Is a remand a good thing or a bad thing?
  • Multiple Remands
  • Remand Instructions
  • How long does it take for the RO to complete a remand?
  • Supplemental Statement of the Case (SSOC)

6) Board (BVA) Denials

  • Partial Grants, Remands, and Denials

7) Alternatives to Appealing

  • Motion for Reconsideration
  • Motion to Vacate, Motion to Revise based on Clear and Unmistakable Error (CUE)

8) Appealing to the Court of Appeals for Veterans Claims (CAVC)

  • BVA Appeal Deadline
  • How do you appeal to the CAVC?
  • What factors should veterans consider before appealing to the CAVC?

Video Transcription.

Brad Hennings: Good afternoon. Welcome to Facebook Live. This is Chisholm Chisholm & Kilpatrick, the law firm. I’m Brad Hennings and we’re talking today about understanding your Board of Veterans Appeals’ decision. Joining me is Jordyn Coad an attorney with the firm, and Nicholas Briggs, an advocate who also works for the firm.

Before we really get going, I just want to let people know that they’re welcome to submit questions during the Facebook Live and we will try to answer them to the best of our ability. If you’re watching this and it’s not live, please feel free to reach out to us on Facebook or our website. Also feel free to give us a call if you’ve got any questions. Again, our website is cck-law.com.

So, let’s go ahead and get started. We’re going to talk a little bit about the Board of Veterans Appeals. How is a Board of Veterans Appeals different from the rest of the VA claims process?

Jordyn Coad: So, the Board is the appellate body of a VA. It has the ability to review and reverse regional office decisions.

Brad: So, who is making these decisions at the BVA?

Jordyn: So, they are called Board Members or Veterans Law Judges. And there’s any number of them that can kind of fluctuate the number that are serving at one time depending on the needs of VA.

Brad: So one of the differences between the Regional Offices which typically have what they call lay adjudicators versus the Board of Veterans Appeals. Those are all lawyers, correct? That are at the Board of Veterans Appeals making the decisions?

Jordyn: Yes.

Brad: Okay. So, both the staff attorneys and the judges are all lawyers. So theoretically, they should have more expertise, in this area of the law on the claims process.

Jordyn: Yes. Correct.

Brad: Okay. So, what are the Board decisions based on Nick?

Nicholas Briggs: Well, a number of different things. First and foremost, based off of all the evidence that you’ve already submitted to VA, including the things that the regional office took a look at the first time around. It’s also based off of any additional evidence that you happen to present once the case makes it to the Board. And that could include hearing testimony, any additional medical evidence that you might happen to submit after the regional office takes a look at the case, and just making sure that all of VA’s laws and regulations are being applied correctly.

Brad: So the Board often talks about doing what they call de novo review. What exactly does that mean?

Nicholas: It kind of– in the most basic terms, it means looking at all of the evidence of record again through a new lens, sort of. At the end of the day the Board doesn’t need to show any deference to the regional offices’ decisions. So they are not bound by any specific finding of fact that the regional office might have made. They sort of look at things over again and see if there is anything that needs to be changed or adjusted.

Brad: So they take a completely fresh look at all the evidence and they’re not going to give any, as you said, deference to whatever the regional office did.

Nicholas: Absolutely.

Brad: Okay. So it’s a minor setting that the Board of Veterans Appeals has changed the format of the Board decisions themselves. Has this actually changed any of the content? Or is it more of a structural sort of a cosmetic change?

Jordyn: Cosmetic change, you know just a form change — how the decision looks. It’s hard to kind of describe without looking at one but more of the information is sort of on the front or the first page about what the Board denied, or remanded or granted rather than having to get down a  couple of pages to get that information.

Brad: But substantively, especially since you do a lot of work in court, are you finding that the Board decisions are basically handling issues the same way except perhaps to be a little bit shorter?

Jordyn: Yes. That’s generally correct. They have become a little bit shorter with the new format. But generally they’re the same.

Brad: Okay. So Nick, what happens when the Board issues a grant in one of their decisions?

Nicholas: Sure thing. So, they can do– it sort of depends on what the actual issue is that’s being granted. But regardless of what the issue might be, one way or the other, it’s going back to the regional office for a new rating position. In the cases of service connection, that would mean figuring out what the initial effective date of your claim would be. And then determining what the proper rating for whatever disability happened to have been granted. In the case of increased rating claims, it’s a bit more tight in the sense that the Board would have assigned a specific rating. In which case it’s the regional office just needs to figure out what the proper effective date would be based off of whatever the evidence of record happens to show.

Brad: So is that what it means when a VA regional office has to implement the Board of Veterans Appeals decision?

Nicholas: Yes. Implementing is sort of a basic way of saying the Board itself can’t grant the benefit in terms of granting actual compensation and paying the veteran. That’s ultimately a task that falls to the regional office. And typically, the Board’s only going to grant the benefit on a limited scope in terms of service connection for PTSD is granted. The task then falls to the regional office to figure out one how far the claims goes back, what the proper rating is, and then figuring out what the veteran is actually going to be paid based off of the benefit that they then grant.

Brad: So really, it’s a difference between talking about general legal entitlement. Which is what the Board seems to do and then sort of where the rubber hits the road about providing compensation that the veteran is what the regional office has to take care of.

Nicholas: Yes. It comes down to the nuts and bolts of how much a veteran gets paid per month depending on what their percentage is and how far it goes back exactly.

Brad: Now does the Board give disability ratings?

Nicholas: Again, it sort of depends on the circumstance. In the case of a Board grant for service connection they’re not going to assign the rating in the first instance. That’s something that you would typically talk of in terms of downstream issue.  Where if you were to appeal a rating decision down the road. But in certain circumstances if you say already appealed an increase rating claim to the Board. At that point that’s exactly the Board’s task. They’re looking at the evidence to determine what the appropriate rating is based off of that evidence and then depending on the circumstance how far should or could go back.

Brad: Okay. So when can a veteran expect benefits to start after a Board grants? So I’ve done a grant of service connection for my post-traumatic stress disorder. When do I get paid?

Nicholas: Sure. That’s one of those things where it comes down to– you’re not going to get paid the additional benefit until the rating decision gets issued. That can happen in as soon as a couple of weeks. It could also take 6-8 months. At the end of the day, it’s kind of controlled by a number of different factors. The complexity of the issue is one thing. In the case of service connection, VA might determine that they need to schedule you for an exam. To figure out what your proper rating might be. In those circumstances it could take a bit longer. But you really don’t need to worry about that causing any reduction in benefits that you might receive. Because even if it takes them 6 months following a Board decision, you’re still going to get retroactive benefits for that 6-month period.

Brad: Okay. So that’s when we start talking about back pay or retroactive pay. That’s really what you’re talking about.

Nicholas: Absolutely.

Brad: Okay. So let’s talk a little bit about remands. Jordyn, what is a remand from the Board of Veterans Appeals?

Jordyn: So a remand is essentially the Board saying it needs more information before it can make a final decision on a veteran’s claim. And so it generally involves the Board saying — it does involved the Board specifying exactly what more information it needs, and then ordering VA to get that information before it can make a new decision.

Brad: So why would the Board– why does the Board issue these remands?

Jordyn: So for example, in a case of a claim for a service connection where maybe there are missing treatment records or missing service records, the Board would issue a remand saying, “Hey, we need that information before we can make a new decision.” The VA has a duty to have all of the information that it can get to help the veteran get entitlement to his claim– his or her claim before making a decision.

Brad: So Nick, is a remand a good thing or a bad thing?

Nicholas: At the end of the day the only real bad negative outcome is if the Board issues a final denial on a specific issue. We’ll touch upon that a bit later. But like what Jordyn mentioned the VA has this duty to assist. They have this responsibility to say, “There’s evidence out there that we believe would support your case.” And then VA has to go out and exert reasonable effort to try and help you get that evidence. And that can involve getting additional records in terms of treatment records, employment records, social security records, things like that. And then making sure that you have an adequate VA examination that’s properly addressing the conditions that you’re seeking additional benefits for.

Brad: Why would the Board remand a case, let’s say five or six times? Because we’re all aware of cases where a claim goes up to the Board of Veterans Appeals and then it’s remanded back to the regional office, goes back to the Board, sort of ping pong back and forth. This is what they called the hamster wheel of VA law. So what would be the reason for sending something back five times?

Nicholas: Complex issues, complex medical questions that might take more than a few sets of eyes to take a look at them. One of the most common scenarios we might run across both at court and at the Board is the question of whether or not the VA examination is adequate. Are they identifying all of the issues that are at stake in terms of residual conditions, things like that? Are they addressing all relevant evidence of record in terms of linking a condition to service, or talking about different treatment records that show how a condition is severe? And at the end of the day, the VA examiner has a responsibility to sort of address that evidence to the extent that they’re able and then provide an adequate explanation for their conclusion. Whether or not service connection’s warranted or what the level of impairment is, say in a case of a psych case. And in those situations, if the Board ultimately determines that the exams inadequate, they need to send it back to make sure that they do get that opinion. And if it’s a complex medical question, it could take a few tries for a VA to get it right, ultimately.

Brad: In fact Jordyn, isn’t that one of the most common reasons that we get remands when we take cases to the Court of Appeals for Veterans Claims?

Jordyn: Yes. Often we’ll see, it can be either that the examination that is before the Board, that the Board relied on is itself just inadequate. But there can also be an issue with the examination’s compliance with a prior remand order that the Board has instructed. So for example if the Board says that, in a prior remand, that the examiner needs to consider certain symptoms the veteran’s reported and then they get a new examination and the examiner doesn’t do that but the Board goes ahead and relies on it again and denies the claim then that’s generally a pretty good basis for a remand after to the Court of Appeals for Veterans Claims which we’ll get to —

Brad: So can you appeal a remand of the Board of Veterans Appeals to the Court of Appeals for Veteran’s Claims?

Jordyn: The short answer is no.

Brad: Okay. And only appeal final decisions.

Jordyn: Yes.

Brad: Okay. So where can veterans find the remand instructions in their decision?

Jordyn: So they’re at the end of the decision– the instructions themselves are at the end of the decision. Usually the last page, last two pages at least a couple.

Brad: Okay. What kinds of instructions does the Board give the regional office, Nick?

Nicholas: Sure. I kind of touched on this a bit earlier. But it can come in the form of providing what’s called the VCAA notice, which basically outlines the veteran’s responsibility in terms of identifying any evidence they think could support their case and providing information to help VA get that evidence. It could be something specific like requesting the veteran’s employment records if they happened to stopped working for the postal service 10 years ago. And then one of the longer sections that falls under the remand instructions typically are the instructions that the Board gives to a VA examiner. Outlining what the specific condition is and what they need to do to address the evidence. And they can do something as specific as pointing out a specific treatment note that the VA examiner did not consider previously.

Brad: Okay. So is there any sort of timeframe or does the RO have to complete the remand instruction within a certain amount of time?

Nicholas: That’s another one of those things where in theory they need to treat the claims expeditiously because they were at the Board previously and they were remanded. But it’s going to take them some time one way or the other. And it’s– at the end of the day a relatively long process. Just because of certain limitations that are unavoidable in terms of making sure that the correct VA examiner might be available to address the question. At the same time, one thing to consider is that the veteran has a certain responsibility at this point too to make sure that they’re meeting deadlines, that they’re submitting evidence within 30 days of VCAA notice, or something like that. Just because they often need to complete the remand instructions in order. So, if they get stalled out on trying to request records, it would take a bit longer for them to then schedule the exam if the examiner needs to review the records before they move on, so.

Brad: This is one of things that so many veterans get frustrated with and understandably so. And that is that the VA will provide a time of limits and timelines for veterans to submit certain things. There are claims processing rules regarding when a substantive appeal needs to be submitted or Notice of Disagreement. But VA itself is not held to any kind of time standard. Working in this area for quite a while, some of the remands can take 3 months to resolve on remand. And some I’ve seen take as long as 6-10 years until they come back to the Board of Veterans Appeals depending on what has happened with the case. Now that– those are extreme examples. I think the average is somewhere between 6 and 8 months at the moment. That’s a moving target, so please don’t hold me to that timing.

Nicholas: And one thing to keep in mind there too is that even if you do end up bouncing back and forth between Board remands, ultimately, you’re going to maintain the same docket number. Which means that it’s still going to be addressed in the same order that it would have been otherwise if and when it does eventually make its way back to the Board. So you don’t need to worry about losing your place in line if the Board remands your case for additional evidence.

Brad: So what if the remanded claim is denied? Just like Nick talked about, what happens at that point? So it goes back, they do additional development. They look at it again at the regional office level and they say, “Nope, forget it.”

Jordyn: So at that point the regional office will issue what’s called a Supplemental Statement of the Case, which is just an explanation of why they denied it again. And then it will move on and go back to the Board for another final determination, a final decision.

Brad: What if the remanded claim is granted? Nick?

Nicholas: Sure. So at that point, it sort of works out like a traditional Board grant and that you’re going to receive a new rating decision. It’s going to assign a benefit in terms of a disability rating and the effective date based off of whatever they’ve determined. Could be granted based off of whatever additional development they completed. There are going to be certain situations where they’re not able to grant the full benefit. They might grant a somewhat increased rating but not the full benefit that you’re seeking. In which case you’ll get both a rating decision and a Supplemental Statement of the Case like Jordyn mentioned.

Brad: Okay. So we’ve talked about grants. We’ve talked about remands. So what happens when the Board issues a denial? They say, nope.

Jordyn: So when a Board issues a denial that’s final for the Board’s purposes and VA’s purposes. Although there are ways for a veteran to disagree with that, which we’ll get to as well. But that’s the final decision from VA’s standpoint. You have to take further action at that point.

Brad: So is it possible to receive different decisions on different conditions? For example, is it possible for the Board to grant PTSD but deny or remand an issue with your back?

Jordyn: Yes. So that happens often, actually. And so, in that case a veteran could still appeal the portion of the decision that denied whatever condition it was. Just because it granted another condition or remanded one doesn’t mean that he or she can’t appeal the denied portion.

Brad: Okay. So, let’s talk a little bit about appealing a Board decision. So now we’ve gotten our BVA decision. It’s not favorable. It’s an unfavorable decision, meaning that the Board denied the benefit or the legal issue that was before it. So, what are your options? Should you just say, “Okay, I’m going to file a new claim?”

Nicholas: So, it’s a complicated answer if only because appeals modernization kind of changes the calculus here. But purely in terms of the legacy appeal system, it doesn’t really benefit you to file a new claim necessarily. One, because you’re losing out on the effective date of the original claim. And at the end of the day, you’d still need to be able to provide some sort of new evidence that’s going to change VA’s minds the second time around. There are a number of different options that would still be available to you, that would allow you to maintain your original claim.

Brad: So let’s talk about that. So Jordyn, can veterans appeal this decision? And if so, where are they appealing this?

Jordyn: So they can appeal it. One of the most common places and arguably from our standpoint, best places to appeal it would be to appeal to the Court of Appeals for Veterans Claims or the CAVC. There are some other options to ask the Board itself to reconsider the decision though, I think you’d agree those are generally not very successful. Appealing to the Court of Appeals for Veteran’s Claims is appealing to a federal court, which is separate from VA and has judicial review over the Board’s decisions.

Brad: So how does that benefit me, if I’m a veteran, from an effective date purpose? I’ve applied for benefits for PTSD. The VA has denied my claim for service connection. They say that your current problems aren’t due to service. And I disagree, so I want to take it to the court. How does that help me?

Jordyn: So that would help you because it maintains that effective date. Essentially, if you obtain a favorable decision from the court that would vacate the Board’s denial going along the same lines, of keeping your place in line, the veteran would keep his initial effective date based on whenever he filed or he or she filed the claim.

Brad: So it keeps the claim alive the whole time or like you said, keeps your place in line. So it’s almost like place holder. So then what are some of the other options of actions you can take with the final Board decision? For example, what’s the motion for reconsideration?

Nicholas: Effectively what you’re going to be asking the Board to do in that situation is to, well, reconsider some aspect of the case that you feel they didn’t adequately address the first time around. I think one of the more successful avenues you can pursue a motion for reconsideration on, would be pointing out some piece of evidence that you know is before the Board that the Board didn’t adequately consider. Because if they happen to deny say service connection for your back condition because there was no in service notation of pain for that condition. And you’re able to say, “No, I actually– I sought treatment for this.” And that treatment is in the record then you could get them to reconsider their previous denial.

Brad: What’s been our experience as a firm with motions for reconsideration at the Board of Veterans Appeals?

Nicholas: Not great, if only because you still need to get them to accept the motion for reconsideration in the first place. More often than not, they’re going to take 5-6 months to adjudicate the motion and they’ll deny it, and you’ll have to appeal at to the Court of Appeals for Veterans Claims anyway. And then even if you do get them to reconsider, that’s still not a guarantee that they’re going to grant the benefit. They could just provide an extra paragraph of explanation explaining why a denial is still warranted.

Brad: So it seems like it would be effective in very limited circumstances. But generally an appeal to the Court of Appeals for Veterans Claims is probably going to be your best option.

Nicholas: For sure.

Brad: So there’s also something called a motion to vacate and a motion to revise based on clear and unmistakable error. What are those exactly?

Nicholas: Sure. A motion to vacate is essentially asking the Board to wipe the slate clean of the Board decision entirely. Generally speaking, you’re able to establish the need for a vacated Board decision when there’s been some sort of procedural hiccup. In terms of say, that you’ve requested a new representative. And you submitted that documentation to VA, but the Board issued a new decision without providing your attorney a chance to provide additional evidence in support of your case. There might be another scenario where you were given the opportunity to respond to a supplemental statement of the case in 30 days. And then 10 days after it’s been issued the Board rushes out a decision denying that case. In that situation, VA is supposed to give you a certain amount of time to respond. And if they don’t give you that time you can ask them to vacate the decision so that you’ll have the chance to respond.

Brad: And then what’s a motion to revise based on clear and unmistakable error? This is a topic that comes up an awful lot. And is that an avenue that most veterans should pursue?

Nicholas: No, if only because they’re extremely difficult to prove. I mean the “CUE”, the clear and unmistakable error, is an incredibly high standard to meet. And that you need to be able to show that whatever mistake that the Board may have made in their decision was undebatable. Meaning that there’s really no question of any reasonable person being able to take a look at what’s before the Board and say, “Yes, that should have been granted.” And to do otherwise is clearly wrong.

Brad: And just to explain, another reason that you’d file something like that is on the final Board decision that’s over 120 days old. Because it’s what they call a collateral attack. Because if it’s within 120 days of the decision, your best bet is to go the Court of Appeals for Veterans Claims at that point because you don’t have that high standard there.

Nicholas: I mean that’s exactly right. So that’s the one benefit to filing one of these claims is that, you can file a CUE claim with a Board decision from the 1980’s. If you didn’t sort of know how to approach the denial at the time, but you now know that there is something so clearly wrong with it that it should have been granted. So, it’s one of those things where you can sort of play around the 120 days period to appeal. But again, the standard’s high. So you want to make sure that you do it right. Because the initial petition is it, you’re not really allowed to allege any additional errors after the fact. You sort of get one additional bite at the apple and if you don’t make all of the necessary arguments that you need to make the first time around, you can’t then add something later if it were to be appealed and sent back to the Board for further review.

Brad: Okay. So if you have multiple conditions at place, shifting gears here. Can you appeal some issues but not others in a Board decision, Jordyn?

Jordyn: Yes. So the short answer is yes. You can appeal and choose to only pursue the appeal of one denial that the Board gave as opposed to another. Generally, when you file the appeal with the Court of Appeals for Veterans Claims that appeal is with the whole Board decision. So the way a veteran would indicate which condition he or she is appealing would be through his argument to the court indicating which one he wants to disagree with in appeal.

Brad: So if he was appealing let’s say for a service connection for hearing loss, tinnitus, a lower back condition and a knee condition, he would just make arguments on let’s say two of them. Let’s say the hearing loss and the back condition.

Jordyn: Correct.

Brad: Okay. So how much time does the veteran have to appeal a Board decision after its issued?

Jordyn: 120 days.

Brad: Okay. So what do you do if the appeal deadline is already past? You’re at the 122nd day.

Jordyn: So at that point, the general rule would be that you need to file a claim to reopen. Either maybe some other avenues, you know on limited circumstances, but generally missing out on that time to appeal is, is that the Board decision is final.

Brad: Jordyn’s absolutely right. There are very rare circumstances where you can file an appeal after 120 days has gone by. And that has to do with a concept called equitable tolling, which we’re not going to get into because it’s complicated. I will say that the Court of Appeals for Veterans Claims is looking at amending one of their rules to allow an extra 30 days to the 120 for excusable neglect, good cause, where it wouldn’t have to be as dramatic as what’s involved with equitable tolling. Anyways, to make a long story short, generally speaking, if it’s past 120 days it’s going to be very difficult to appeal to the CAVC. There are a few exceptions to that rule but if you’re going to appeal a Board of Veterans Appeals decision do it with in a 120 days. So how do you appeal to the court? To the CAVC, the Court of Appeals for Veterans Claims?

Jordyn: So the first thing you do is file what’s called a notice of appeal. And that just contains your– the veterans information, the date of the Board decision, and sort of starts the process, the ball rolling. And after that, one of the first or second things that happen is VA is then required to send the veteran the record in his case. So basically, the claims file, what the Board had before it. And then the appeals process moves out from there. There’s some other procedural things, but the first thing is the notice of appeal.

Brad: Okay. So what kind of factor should a veteran consider when deciding whether to appeal to the CAVC, Nick?

Nicholas: Sure. One thing to keep in mind is that the court is in an appellate court in the sense that they’re really not allowed to make factual findings without reaching a very high evidentiary burden. What the court’s ultimately looking at is whether or not the Board misinterpreted the law. Or whether or not they misapplied the law to the facts of the case. So, it’s a very limited circumstance in that you can’t just disagree with how the Board weighed the evidence necessarily if they did it correctly. But at the same time, the Board does have that responsibility to explain how they did it in a way that you can understand their denial.

Brad: And so just to be clear. So, this is Brad Hennings of– with Chisholm, Chisholm & Kilpatrick. We’re talking about understanding your BVA decision. I’m joined by Jordyn Coad and by Nicholas Briggs. And I just want to let you know that we’re talking about what they call the legacy appeals process, which is the appeals process that we’ve all gotten to know over the years. We’re not talking about the new appeals process that Congress passed, the appeals modernization process. VA has begun rolling that out with the RAMP, the Rapid Appeals Modernization Program. So, we’re not talking about that. That’s a separate topic because there haven’t been that many Board decision issued under that program. But we will be having a program in the near future that does discuss that. There’s literally, I think probably only about 50 to 80 cases that have been decided so far. So again, this all applies to the legacy appeals program. So that being said, do we have any questions? Okay. With that thank you very much for joining us. Do you have any final words, Nick and Jordyn? Anything else you all would like to add or anything else?

Jordyn: I don’t think so.

Nicholas: Just again, make sure that you take the time to submit evidence to the Board. Even if they’ve sent you a letter you’ve already responded. If you really do see something else, you have up until the day they issue the Board decision to get something before then. So, the process never ends. You always have that additional chance to get evidence before the Board for them to take a look at.

Jordyn: Yes. And I mean, I guess kind of going off from that, just keeping as best as you can, an eye on when you’re getting decisions from the regional office and from the Board. So that if you want to appeal those or disagree with them, you don’t miss out on your time to do so. And if you have questions, you can reach out to us, or you know.

Brad: That’s a great segue. And that segue is that this is a complex process. It’s a long burdensome process at times. So please don’t do this alone. Go try to find a Veteran’s Service Organization. Go try to find a VA accredited attorney, a VA accredited agent. Someone who’s knowledgeable about VA alone and the claims process to help you through the whole thing including the Board of Veterans Appeals. So again, thank you for joining us. I’m Brad Hennings with Chisholm Chisholm & Kilpatrick. Please check us out. Leave us comments at our Facebook page. Come to cck-law.com. Or give us a call and we’d be happy to talk to you about your case.

 

 

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