CAVC: Question 1

[broncovet]

Is the VA going to "defend"?  

When you appeal to the Court of Veterans Claims, after the VA delivers your attorney the required RBA, your attorney files a "pre brief" hearing.  

Soon, the VA lawyers decide if they are "going to defend"?

What does this mean?  

It means that the Board makes decisions on behalf of the Secretary, and the VA does not agree with all BVA decisions.  Some, they will defend the Board's decision.  Others, however, they recognize are in error and are "not defensable", and they choose to not persue your denial.  In other words, they agree with the Veteran's position that the Board decision had at least one error.  

The next thing they decide is did that error cause you to get a lower amount of benefits, that is, was it "harmless error"?  

A good example of harmless error is when the VA fails in the DTA, especially if there was no chance of a benefit.  

In other words, if a Veteran has no "current diagnosis" of a disability, the VA's failure to ask him for a release of information wont help his case.  You are not getting benefits without a current diagnosis, even if VA makes procedural errors.  Its a disability benefit, and, if you dont have anything wrong with you, then you dont get anything.  

The VA's decision to defend or not defend is very important on several levels.

1.  First, The Veteran should get at least a remand.  No less.  There was an error that VA admitted to, and the usual remedy is remand. 

2.  It skews the numbers, and makes VA look good.  In other words, VA awards the benefit requrested, but the board decision is not seen as a denial error, even tho that is exactly what it is.