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

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“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)

REPRESENTING THE MILITARY VETERAN
The Appeal Process at the Local VA
Regional Office Level
The Appeal Process at the BVA
Tips / Key Resources
NOSSCR FALL CONFERENCE – Las Vegas, NV October 10, 2014

 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.

 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.

 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.

 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.

 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.

 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.

 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

 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)

 “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!

 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…

 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

 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)
 katrina@vetsjustice.com

Intro to VA Law Part 2 NOSSCR 10.2014

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