Intro to VA Law Part 2 NOSSCR 10.2014

HOW TO APPEAL AN ADVERSE DECISION BY THE DEPT OF VETERANS AFFAIRS

NOSSCR FALL CONFERENCE Las Vegas, NV - Friday, October 10, 2014

Presenters:

Katrina Eagle & Jeff Bunten,

Veterans Law Attorneys

Vote for a question

Respond to Poll

Ask a Question

NOSSCR.CNF.IO

“Unlike at the Veterans Court, where proceedings are more adversarial in nature, IN PROCEEDINGS BEFORE THE BOARD, ‘the relationship between the veteran and the government is NON-ADVERSARIAL AND PRO-CLAIMANT.’

Because of the paternalistic nature of the proceedings, the Board, like the RO, is required ‘to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.”

“The government’s interest in veterans’ cases is

NOT that it shall win, but rather that justice

shall be done, THAT ALL VETERANS SO

ENTITLED RECEIVE THE BENEFITS DUE

TO THEM.”

Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)

“The VA disability compensation system is not

meant to be a trap for the unwary, or a

strategem to deny compensation to a veteran

who has a valid claim, but who may be

unaware of the various forms of compensation

available to him.”

Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)

October 10, 2014NOSSCR FALL CONFERENCE – Las Vegas, NV

The Appeal Process at the Local VA

Regional Office Level

The Appeal Process at the BVA

Tips / Key Resources

REPRESENTING THE MILITARY VETERAN


VA Organizational Structure VA Regional Office (VARO)

57 VAROs – at least one in each state, and one also in DC, Puerto Rico, and the Philippines. It is at one of these VARO’s where a veteran would apply for benefits

Board of Veterans’ Appeals (BVA) The highest adjudicative body in the VA, located in Washington, DC. A decision issued by a VARO and appealed by a veteran would be

reviewed and re-adjudicated here. BVA currently is comprised of four decision teams, divided along

geographical lines, and consists of 64 Board Members and 240 staff counsel.

The Board can consider new evidence that was not considered by the VARO, but only if the veteran waives consideration of the new evidence by the Regional Office. The Board is permitted to seek its own medical opinions in some cases.



VA Organizational Structure Appeals Management Center (AMC)

A “super” VARO, which performs actions previously conducted by the BVA Development Unit

The AMC completes all development for claims remanded by BVA

AMC has 2 distinct functions Development Decision-making

AMC has 3 Development Teams and 1 Decision Team.


VA Organizational Structure U.S. Court of Appeals for Veterans Claims (CAVC)

The CAVC is the federal court that hears appeals from the BVA The CAVC currently consists of nine judges who are appointed by

the President to fifteen-year terms. Chief Bruce E. Kasold has sat at the helm of the CAVC since August 2010.

The CAVC is an appellate court, so it hears no new testimony, conducts no trials, and considers no new evidence. Instead, it considers the BVA decision, the administrative record that was before the VA, and briefs of the parties before it.

U.S. Court of Appeals for the Federal Circuit U.S. Supreme Court



2 Key Components of a Rating Decision – 1. The Notice Letter:

The VA is required to provide written notification to the claimant, and his/her representative, of an adverse decision on any claim for benefits. See 38 U.S.C. § 5104; 38 C.F.R. § 3.103(b). The date of the notice letter is important because it is this date – NOT the date of the rating decision itself – which starts the one-year period within which a claimant must file a timely Notice of Disagreement (NOD).



2 Key Components of a Rating Decision –

2. The VA’s Decision:

Hopefully, it includes an explanation, aka “reasons & bases”



Adjudication of Claim at the VARO A VA Notice Letter / Rating Decision addresses 3

primary issues - any or all may be appealed:1. Service-connection - this is a predicate to the other

two issues. If a VA decision determines that a particular claimed disability is not service connected, it moots the need to decide the percentage of disability or effective date.



Adjudication of Claim at the VARO A Rating Decision addresses 3 primary issues - any

or all may be appealed:2. Percentage of Disability - The VA uses a set of

Diagnostic Codes, found in the CFR, Title 38, to evaluate disabilities. These codes contain descriptions of many different kinds of disabilities, and have percentages assigned to correspond with the different levels of severity of each condition.



Adjudication of Claim at the VARO A Rating Decision addresses 3 primary issues - any

or all may be appealed:3. “Effective Date” and “Retroactive Benefits” -

The effective date assigned to a service-connected disability is usually the date the claim was submitted.



Adjudication of Claim at the VARO A Rating Decision addresses 3 primary issues - any or

all may be appealed:3. “Effective Date” and “Retroactive Benefits” –

If the claim was filed within a year of the veteran's discharge from service, the effective date will be the discharge date.

If a veteran filed a claim years ago, had it denied, and then reopened it with new and material evidence, the retro benefits will go back to the date of the reopening.



Adjudication of Claim at the VARO A Rating Decision addresses 3 primary issues - any or

all may be appealed:3. “Effective Date” and “Retroactive Benefits” –

Rarely will the retroactive awards will go back to the date that the injury or disease was incurred, or back to the date the veteran left the service.



Claim Denied – Now What? If a claimant receives an adverse decision from the

VARO and wants to appeal, he or she must FILE A NOTTICE OF DISAGREEMENT (NOD) TO INITIATE THE APPEALS PROCESS. See 38 C.F.R. § 20.201.

The NOD must be filed within one year from the date of the mailing of the VA notice letter.

VA now has NOD form – beware!



POINTS TO COVER IN THE NOD: Date of the Rating Decision you are appealing The specific claims and, or issues from the rating

decision with which you disagree, and a short (KISS!) statement why you disagree.

Save a step and request in the NOD which type of appellate review – de novo by a Decision Review Officer (DRO) or traditional appeals process.

Consider the issues and consult with your client – request a hearing or informal conference?



NOD SUBMITTED – NOW WHAT? More letters from the VA Eventually, a Statement of the Case (SOC) Claim still denied? Appeal it to the BVA

(Washington, DC) – submit the VA form 9 w/in 60 days

If you or the veteran submits more evidence to the RO, the RO will have to consider it and issue a supplemental SOC



VA Organizational Structure Board of Veterans’ Appeals (BVA)

The Board can consider new evidence that was not considered by the VARO, but only if the veteran waives consideration of the new evidence by the Regional Office (aka AOJ).

The Board is permitted to seek its own medical opinions in some cases.

Conducts video or “Travel Board” hearings upon veteran’s requests.

Over 47,000 decisions appealed to BVA in FY2011


Why Go To BVA At All??

VA received 1.3 million claims in FY2011

VA took 188 days to decide a claim in FY2011

BVA took 886 days to process an appeal in FY2010. But…


Why Go To BVA At All??

BVA reversed / remanded 70 percent of RO decisions appealed

BVA has codified regs for advancing appeals on the docket; RO does not

BVA Judges have independent decision-making authority; RO raters do not

But…BVA decisions have no precedential authority


No. 1 Reason To Appeal to the BVA

$33,228


Steps in Appeals Process at the BVA VA form 9 – The Substantive Appeal

Note: the filing of the Substantive Appeal (aka “Formal Appeal”) and the earlier NOD are the only 2 MANDATORY actions required of a claimant to perfect an appeal to the BVA

Like the NOD, the Substantive Appeal must be filed with the VARO that issued the adverse Rating Decision

The Substantive Appeal must be filed within 60 days of mailing of SOC or within remainder of 1-year period of mailing of notice of Rating Decision, whichever period ends later



Steps in Appeals Process at the BVA VA form 9 – The Substantive Appeal

Once veteran files VA form 9, BVA assigns a docket number Advise veteran NOT TO SUBMIT ANY MORE

EVIDENCE TO VARO – NO EXCEPTIONS!! Otherwise, another SSOC, more delays, and no change in adverse decision

BVA assigns docket number in numerical order, and uses it to decide order of case review on first-in, first-out rule

Submit Motion to Advance Case on BVA’s Docket if Veteran is 75 y. o. or more, Seriously Ill, Under Severe Financial Hardship, or Other Specific Sufficient Cause Shown (per 38 CFR 20.900)



Steps in Appeals Process at the BVA “Necessary Information” To Include on VA form

9 (Per 38 CFR § 20.202): Identify the Rating Decision by Date Identify Issues / Claims Denied in Rating

Decision Set out Factual Issues on Appeal and summarize

specific arguments for each – KISS! Set out Legal Issues on Appeal and summarize

specific arguments for each – KISS!



Steps in Appeals Process at the BVA Box 8 of VA form 9 – Do you Want a BVA

Hearing? Is it a Factual Issue that involves Credibility of Veterans?

Then ask for BVA Hearing Is it an Issue which Requires a Key Witness or Evidence?

Request a subpoena be issued to compel attendance (so long as w/in 100 miles of hearing location) or production of evidence Don’t forget – you can request a “Videoconference

Hearing” which may shorten waiting time…



Steps in Appeals Process at the BVA Box 8 of VA form 9 – Do you Want a BVA

Hearing? Is it a Legal Issue? Then pass on BVA hearing and

set out detailed argument on paper Explain reasons for and against BVA hearing to

veteran At conclusion of BVA Hearing, request that

Record Remain Open for 60 days if you anticipate submitting additional evidence



Steps in Appeals Process at the BVA Upon Receipt of VA form 9, VARO then:

Certifies Appeal to BVA via VA form 8, and Sends Veteran “90 Day Letter” to:

Change representation, Submit additional evidence or argument Change Request re a Hearing

Even after 90 Days, Veteran may be able to get an extension for Good Cause per 38 CFR § 20.1304(b)(1)



Where Do We Go From Here? Depends on What Kind of Decision Issued by BVA

If BVA Grants a Claim, then Case Returned to VARO for Promulgation

Beware!! Grant Can Be Buried and, or BVA Decision Not Always Carefully Reviewed by VARO’s Intake Team

Beware!! Multiple Issues Addressed in BVA Decision Can Go In Multiple Directions

Beware!! Will typically take 4-6 more months before veteran actually is paid benefits



Where Do We Go From Here? Depends on What Kind of Decision Issued by BVA

If BVA Remands a Claim, then Case Usually is Transferred to AMC

If BVA Denies Claim, Veteran Has 120 Days from the date on the decision to either file a Motion for Reconsideration to BVA and, or to file a Notice of Appeal to The Veterans Court.



Jurisdictional Requirements for Filing a Notice of Appeal (NOA) at the CAVC:

BVA decision must be “final” – i.e., must be a DENIAL of a claim for benefits

Review for any issues which may be “inextricably intertwined”

NOA must be received within 120 days of date of BVA decision (and the Presumption of Regularity is on VA’s side)



Tips re Appellate Practice: Always Keep the BIG PICTURE in mind! In other

words, what will BVA be looking for to decide claim on merits? Make sure it’s in the C file!

Only appeal claims that are (or will soon be) supported by the evidence in the C file

No Puffery, No Fluffing, No BS! A Veteran’s Claim will NEVER be granted simply because “he/she valiantly served in the military”; claim must be supported by evidence

If it’s a complicated medical and, or legal issue, don’t give up; consult with colleagues or attorney.



Katrina’s Contact Information:

10755 Scripps Poway Parkway; # 353; San Diego, CA 92131

858.549.1561 (o) / 858.549.1167 (fax) [email protected]


Date post:	28-Nov-2014
Category:	Law
Upload:	katrina-eagle
View:	74 times
Download:	0 times