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I Received an Unfavorable Board Decision; What Should I Do?

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 a VA Regional Office.  The Board of Veterans’ Appeals consists of Board members, sometimes referred to as 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 thereafter, such as testimony from a hearing.  The Board also reviews previous decisions to ensure that VA law was applied correctly to the veteran’s claim.

When making its decisions, the Board of Veterans’ Appeals conducts a review of the veteran’s claim de novo (i.e. new look).  This means that the Board members 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 the Board is not bound by any findings issued by the Regional Office.

Disagreeing with a Board Decision in the Legacy Appeals System

When veterans disagree with a decision from the Board, their only appeal option is to appeal to the Court of Appeals for Veterans Claims (CAVC) within 120 days, otherwise they will lose their effective date.  If they miss this appeal deadline, they will likely have to file to re-open their claim, which will result in a new effective date.  Veterans may also have the option to opt into the new appeals system by filing a supplemental claim; however, veterans will still lose their effective dates in doing so.  Importantly, the CAVC is separate from VA, and has the authority to review the Board’s decisions for legal errors.

Again, veterans who choose to appeal to the CAVC will preserve the effective date of their claim if they appeal within the above-mentioned timeframe.

Appealing a Board Denial Under the Appeals Modernization Act (AMA)

Under the Appeals Modernization Act (AMA), if you receive an unfavorable decision from the Board of Veterans’ Appeals, you have two main options:

  • Appeal to the CAVC
  • Submit a Supplemental Claim with new and relevant evidenceat the Regional Office level

Here, the process of appealing to the CAVC will be the same as in the Legacy appeals system.  Once the Board issues a decision, veterans have 120 days to file an appeal to the CAVC.  To file an appeal, veterans must submit a Notice of Appeal with the Court, which includes both personal identifying information and details about the Board decision.  From here, the veteran will receive the Record Before the Agency (RBA).  The RBA consists of the veteran’s claims file as it existed when the Board made its decision.  The CAVC operates on a closed record, meaning claimants cannot submit new evidence into the record at this stage of the process.

If veterans choose to file a Supplemental Claim in response to the unfavorable Board decision, they must do so within one year in order to preserve their effective date.

Why Do I Need a Lawyer to Appeal to the CAVC?

Once a case is appealed to the CAVC, the appeals process goes from non-adversarial at the VA level to adversarial at the Court level; VA has attorneys to argue in support of its case.  Therefore, it is beneficial to have an experienced representative arguing on your behalf as well.  Additionally, appealing to the CAVC involves deadlines to which it is important to adhere.  VA disability attorneys will ensure that all deadlines are met in order to continue the veteran’s appeal and preserve his or her effective date.

Call Chisholm Chisholm & Kilpatrick LTD Today

At Chisholm Chisholm & Kilpatrick LTD, we are dedicated to providing quality legal services to disabled veterans who are pursuing VA disability benefits.  We have successfully represented thousands of veterans before the Court of Appeals for Veterans Claims.  If the Board issued an unfavorable decision in your case, we may be able to help you appeal.  Call 401-753-6359 for a free case evaluation.