Presenting An Appeal At The Board Of Veterans’ Appeals - Resource

[free_spirit_etc]

Interesting guide written by a VSO for presenting claims:

http://www.iacvac.org/PP/ceu7.pdf

[Berta]

I think this point below is the most important one from that link:

I was in school for a long time years ago and have just started a new course and this is what I started to day today......to prepare a thesis.

Going before the BVA is like writing a Thesis. But it doesn't have to be anywhere near as complicated as that.

A good Outline as a cover letter to the written submission they suggest here ,not only keeps the judge on track (have copies for the judge and any Rep or third party who goes with you to the hearing)

and the submission should include exactly why the decision was wrong based on the following evidence......tell list that evidence and bring it with you....and the outline keeps you on track as well.

The outline is the road map.

It should cover and then insure that ALL probative evidence will get into the record.

I have told vets here to pretend the judge came to work that day and forgot to put their underwear on,so they are far more uncomfortable then you should be.

Also plan on something good after the hearing...rent the movie you want to see or go to a nice restaurant. Focus on that if you get nervous, to do something good for yourself when the hearing is over.Tak a deep breathe if you need to, and relax......remember they don't have any underwear on and you do!

A hearing, as this suggests, is NOT the time for yada yada, poor me, war stories, a rendition of any VA case law or regs you dont really understand,but think that will impress the judge if you throw some regs in that might have absolutely nothing to advance your claim.

By time of a BVA hearing a claimant should not be depending on their VSO or rep, and should know and have already stated in their written submission, the exact regulations that apply to their case and how the proper interpretation of those regs ,along with probative evidence, should warrant an award.

Bring those EXACT regs with you.

It is time,if any evidence was missing from the last decision, to give copies of that evidence to the judge and certainly to give them any new evidence you have and make sure it is included with a brief description in the Outline you prepare and also described and advanced in the written statement they advise here.

As this download says, you need a Road Map and the outline is the road map for what you want and why you should get it.

First,

DO a written submission!

•

Not surprisingly, the same guidance we just discussed

for introductory remarks, applies to written

submissions – and for the same reasons.

•

You are providing a roadmap for the attorney drafting

the decision and the VLJ who is reviewing/revising/&

signing off on it.

•

Tell them where you want them to go

•

Give them a reason to go there

•

Don’t confuse them or offend them with a bunch of

garbage or meaningless boilerplate.”

[john999]

I had a traveling Board with a single judge. My lawyer was there with his prepared brief. The judge just glanced at it and prepared to give us a lecture on the meaning of CUE, but then he read a little more and saw that my lawyer knew very well the meaning and that we were not just asking to reweigh evidence. The process lasted about 10 minutes and then 4 months later a denial. I think it is important to have representation in these affairs because it you go to CAVC you can't add new evidence unless they remand it. I am not sure what good my lawyer did at my BVA Hearing because no way in hell were they going to grant it. However, the lawyer became more and more familiar with the case law surrounding my claim so that by the time we got to CAVC his brief had become even better. When it was remand back to BVA from CAVC he was able to add a new argument. I was not up to that by myself.

John

[free_spirit_etc]

I am a bit nervous reading the guide because I blew my hearing by appointing the VSO. He made NO argument in support of my claim, he didn't want ME making an argument in support of my claim. He didn't submit my written arguments. And he just asked my questions about my husband's smoking history, when I met my husband, when we got married, what my husband's jobs were in the service, and if my husband was supporting the Vietnam War efforts when he was stationed in Guam. None of it had much anything to do with proving my case for service connection for lung cancer. It might have, if any of the questions were actually relevant to the theory of entitlement. But they weren't.

So now that I read that the most important things they go by in drafting the decision is the hearing transcript and the judges notes from the hearing, I know I am at a distinct disadvantage when they start making a decision on my claim.

I know I have strong IMOs - and I can still present a written argument. But I was also concerned when the VSO writing the guide said that if the veteran insisted on advancing a claim that the VSO didn't want to advance, the VSO should give the judge a heads up by stating "the veteran maintains..."

That pretty much makes it look like he is saying the VSO should alert the judge what to disregard (i.e. whatever the veteran says...)

So, it looks like you are almost better off without a VSO, so the judge at least has to consider YOUR argument, and not just the VSOs.

[free_spirit_etc]

"I think it is important to have representation in these affairs because it you go to CAVC you can't add new evidence unless they remand it."

That also puzzled me in the guide. He was pretty much saying that you should make sure you only include the least possible, to make it easy for them to decide in your favor. And I can see this in your main argument. But if you are not able to add any evidence or argument between the BVA and CVA, then you need to make sure you have included everything.

Where I struggle on this is with my accrued benefits claim. I think I might see if I can get that remanded to the RO. Not the cancer claim, but whether there are any more issues.

[carlie]

I am a bit nervous reading the guide because I blew my hearing by appointing the VSO. He made NO argument in support of my claim, he didn't want ME making an argument in support of my claim. He didn't submit my written arguments.

This is when you have to just jump in and speak up -

I prefer to have prepared my argument in advance and read it verbatim into the official record.

So now that I read that the most important things they go by in drafting the decision is the hearing transcript and the judges notes from the hearing, I know I am at a distinct disadvantage when they start making a decision on my claim.

It does not sound like there was anything new presented for consideration.

I know I have strong IMOs - and I can still present a written argument.

Mail copies of them to the VBA judge -pronto

JMHO

carlie

[free_spirit_etc]

I am a bit nervous reading the guide because I blew my hearing by appointing the VSO. He made NO argument in support of my claim, he didn't want ME making an argument in support of my claim. He didn't submit my written arguments.

This is when you have to just jump in and speak up -

I honestly didn't know what the protocol was. And I thought since he was representing me it would be NOT good to go against him, around him, or over him at the hearing. It just seems like judge's wouldn't like you showing disrespect to your VSO during the hearing. I realize in retrospect when the judge asked me if I had anything to add, I should have looked at the VSO and asked -- I doubt he would have told me to not add anything in front of the judge. But I was really thrown for a loop when the VSO was so critical of my claim and evidence. I should have NEVER put myself in the position that I did.

I prefer to have prepared my argument in advance and read it verbatim into the official record.

I had my argument written out. I spent hours and hours fine-tuning it.

I know I can still submit it. I am wondering if I should included a cover letter and say I had it prepared for the hearing, but did not get to present it., due to miscommunication between the VSO and myself.

So now that I read that the most important things they go by in drafting the decision is the hearing transcript and the judges notes from the hearing, I know I am at a distinct disadvantage when they start making a decision on my claim.

It does not sound like there was anything new presented for consideration.

I did present my IMOs - and the judge asked me what they said.

I know I have strong IMOs - and I can still present a written argument.

Mail copies of them to the VBA judge -pronto

I did present those at the hearing. The VSO didn't want to - but I convinced him to present those. He didn't "present them" so to speak. But he did lay them up on the desk for the judge.

I had written to the BVA to request a copy of my husband's discharge physical before getting an IMO. I also postponed the hearing until the confirmed whether they had it or not. And the judge asked me if I had gotten what I requested from the VA. I told him I wanted to get the discharge physcial before getting the IMO - but that the BVA didn't have the physical. He asked if I got the IMO and I said yes. He turned to the papers that were laying up there and asked if that was what those were, I said yes. He asked what they said. I told him they said my husband's cancer started in the service. Then he looked at the VSO, I think expecting him to speak. But the VSO didn't say a word. So then the judge told me that what I needed to show service connection was a current disability, and in service occurance, and a nexus between the two. He put his hand on my IMOs and told me that those might provide my nexus. So THAT was VERY good - that the judge recognized that. He actually seemed happy when I told him I had gotten the IMOs.

JMHO

carlie

Thanks Carlie! I appreciate it!

I probably need to go ahead and submit my argument in the near future.

The judge did give us 90 days to submit further evidence - which would end December 3.