BVA Appeal / Lawyer Needed or Not?

[Vetrequest]

Is it recommended that I hire a lawyer for a BVA appeal?  This will be my first time appealing to the BVA.  What occurrs at this hearing?  Who asks me questions?  Is there a role for an attorney at this hearing?  Wanting to know what to expect and how difficult it was for those who've been down this road. 

Thanks..

[shrekthetank1]

Personally I would not recommend one at the BVA.  I went at it with the VFW and had some good results.  I am now at the CAVC with a Lawyer as the attorney fees are covered at this part.

With that being said I have the energy still to fight them, and I understand not everyone does.  It is your call do hire a lawyer, but the help from this site is amazing!  

[broncovet]

If you are appealing a Board decision (to the CAVC) dont even think of doing so without a lawyer.  

Reasons:

1.  CAVC awards eaja (lawyer fees) so it wont cost you anything.  

2.  CAVC is NOT "Claimant friendly" like BVA, they expect you to know the rules, and to abide.  The CAVC does not do benefit of the doubt, you have to show the preponderance of evidence supports your position.  

3.  CAVC is not a "trier of fact", they correct legal errors made by the board.  So, if you dispute the Boards judement call (rating percentage, etc), the CAVC does not overturn that UNLESS a "fact finding" made by the board is "arbritrary and capricious".  

4.  You will be expected to prepare a "brief" (at a minimum) and, well, its just unnecessary for you to try to be your own lawyer at CAVC when eaja pays the fees.  This said, you "can" file a NOA (not a nod) at the CAVC level, and then retain an attorney if the 120 day deadline is very close, and not enough time to obtain legal representation.  

 

      IF you are appealing "TO the BVA" then you can self represent.  But if you are appealing a BVA decision, get a lawyer.  I agree with Shrek in that you can appeal TO the board yourself, but its unclear in your post whether you are appealing "to" the Board, or appealing a BVA decision TO the CAVC.  

Edited April 10, 2020 by broncovet (see edit history)

[AllTheWay]

I would say its the individual personal decision. I had filed a claim and I use VFW as my rep. Bless my VA rep heart, she did a great job. But for some reason, I kept getting denied. My VFW rep filed the NOD for me which she would not do if its not a strong claim and again denied. It take a long time to do research  for an individual claim which she service ample amounts of vets on a daily basis which only limit the time for maybe 10 minutes per person.

So of course the SOC had come in and being that she was swamped, I had made that decision to lawyer up which is at the BVA level. Yes you do have to pay attorney fee's but this particular attorney does not accept a fee until the claim is awarded which is 20 Percent.

Just like anything else with the VA, you have to spend a little money to get your deserved proper rating. I had made a decision to go this route instead of going and paying thousands of dollars to get an IMO/IME with a possibility of still getting denied.

Do not get me wrong, our VFW's/DAV's (which I am a life time member of both) etc are doing a great job but I think that they are over worked and can not keep up with the workload as far as claims and other things.  But its pretty much a crap shoot. You may have good support from your rep, maybe not. So what do you do? Fire that rep and get a new one? That might delay time being that the new rep has to get familiar with your claim.

Thats why I made the decision to lawyer up at the BVA level and yes its a crap shoot for me as well but I will never quit. Once I do have my hearing, they BVA may look at that yes I have an attorney as my rep so hopefully the BVA will pay more attention to detail to my claim instead of RO's looking at it briefly. Just my opinion though.

I am sure that there are other members on the board like Broncovet and Berta have different insight. They are much more experienced than I am and we can all learn lots from them.

 

[vetquest]

I went to the BVA the first time and won with the help of the NCOA.  Ten years later I went to the BVA again and decided to hire a lawyer because the VA was playing fast and loose with the laws and CFR's in my case.  Only you can make this decision but know that the service organizations are usually busy and can not always give you the time a lawyer can, it just costs you 20% of your award usually.

I do not believe we should have to hire a lawyer or get expensive IMO's but sometimes that is what it takes.  It's a lot better than the old days when we could not hire a lawyer by law.  Those were some dark days.

[Hucast21]

I would hire a lawyer. Just some background info in my claims process. I got denied on several contentions when I first filed my claim except for one - 20% combined rating for both knees. 

It was the least documented disability in my SMRs - only two instances of one complaint to sick call and my separation physical exam where the physician diagnosed me with PFS on both knees.

My migraine headaches and severe depression are the most documented disabilities on my SMRs and VA treatment records but I was denied. Filed a NOD and sent in new and material evidence of an IME w/IMO from a board-certified specialist, and got denied once again. My lawyer immediately faxed VA Form 9 to intake to appeal to the BVA.

At the BVA hearing, my lawyer will present a letter citing VA rules, regulations, and other similar cases about how my claim has been unfairly rated by the RO given all of the favorable evidence and how the RO does not apply VA’s own CFR’s.

The above is powerful because you have someone competent presenting your claim before a BVA hearing judge. I would think the BVA hearing judge would take your claim more seriously compared if you went with a VSO.

Edited April 10, 2020 by Hucast21 (see edit history)

[Hucast21]

1 hour ago, vetquest said:

I went to the BVA the first time and won with the help of the NCOA.  Ten years later I went to the BVA again and decided to hire a lawyer because the VA was playing fast and loose with the laws and CFR's in my case.  Only you can make this decision but know that the service organizations are usually busy and can not always give you the time a lawyer can, it just costs you 20% of your award usually.

I do not believe we should have to hire a lawyer or get expensive IMO's but sometimes that is what it takes.  It's a lot better than the old days when we could not hire a lawyer by law.  Those were some dark days.

It seems a lawyer and an IMO are the only winning chance a veteran has in most cases.

The only claim I know of personally that was granted on initial file was my friend’s. He filed his claim right when he was separating from service.

[Buck52]

13 hours ago, Vetrequest said:

Is it recommended that I hire a lawyer for a BVA appeal?  This will be my first time appealing to the BVA.  What occurrs at this hearing?  Who asks me questions?  Is there a role for an attorney at this hearing?  Wanting to know what to expect and how difficult it was for those who've been down this road. 

Thanks..

Vetquest

No its not necessary to hire an Attorney when you first go to the BVA,  IF Your still denied  then its time to lawyer up.

I'd would wait and see what the outcome is first before Hiring an Attorney  you may not need to.  you know your case better than anyone    but some times no matter how hard or what evidence we submit  they can still deny us.

[Berta]

I agree- because the BVA will read Everything-

but have you posted your redacted denial here? And the Evidence list?

It would reveal what evidence you need to succeed.You might not need a lawyer.

The Evidence list- sometimes they state a piece of evidence , which is probative*, to the claim but then never mention that they considered it, in the decision. That is a legal error under CUE.

* This could be a detailed buddy statement, private medical records they have,  or even a costly IMO/IME.

Sometimes the VA will simply completely ignore probative evidence,so that they can deny the claim fast.

(This is why we need to check to see they got it, whether via snail mail, or benefits etc etc etc, as CUE rests on evidence in their possession at time of the decision.)

That too is a CUE under 38 CFR 4.6.

My SMC cue was worded that ,under 38 CFR 4.6, they "failed to consider" SMC by ignoring probative evidence

on their own rating sheet.

The rating sheet clearly showed 1151 award  % over 60% ( since became 100% P & T 1151)

as well as my husband's previous 100% SC P & T rating for PTSD.

The medical  evidence also revealed the 1151 stroke had made him housebound.

That CUE took 8 years  be resolved ( by the Nehmer VARO in Philly)

The rhetoric I got from my RO was so ridiculous, it was one of my pieces of evidence for an IG complaint I made.

( presently in process, due to an audit request and  two more CUE claims)

My long point here is that -we cannot breeze over any Evidence list-as it could reveal the decision is ripe for CUE.

My last successful CUE award -2015 ( I cued that decision again-it is still wrong)did show the sole piece of evidence I needed for that claim.

It was an opinion from the Top Cardio doctor in VA Central.( dated 1998) generated by my successful FTCA claim.

VA ignored it completely and denied the 1151 claim and I CUEd them the next day, and the awarded letter came 3 weeks later.It was a clear violation of 38 CFR .4.6.

We have become VA unpaid claims "employees."

The new proof reading scenario ,is now up to us and not up to any VSOs, vet reps etc etc due to the new RO criteria. 

Some vet reps VSOS etc, don't even know how to identify a CUE (my former state reps didn't)

so I think this might be a good thing.

If you can scan and attach here your redacted decision and the evidence list-it will help us deterimine what you need, to succeed.

The BVA, once you get a Docket # will accept any additional evidence you have.

 

 

 

 

 

 

 

 

 

[Berta]

Here is the skinny on how we are now ( as of April 30th)becoming unpaid VA claims "employees" for our own claims:

This goes for Agents, VSOs, and all vet reps from all vet orgs as I understand this.

Most of us hardcore claimants here ,in many cases, do what the VA should do anyhow.

[broncovet]

I can see both sides (at the BVA).  

Pro "lawyer up":

1.  Your lawyer should be able to make your BVA appeal bullet proof to the CAVC, if denied by the Board.  

2.  Sometimes, its tough to win at the CAVC, because a good job was not done by the claimants and or his representative.  Its not always easy to fix BVA errors at the CAVC.  Remember, CAVC is not a "trier of fact" generally.  If denied at the BVA, in order to appeal to the CAVC you have to use all the same evidence.  You cant add anything.  THAT is problematice because we often dont know what evidence the BVA HAS until its all done.  Then its too late to add anything if you want to appeal to the CAVC.  

3.  If you win, you will get about 5 times what the lawyer gets.  (Typically the lawyer gets 20 percent).  That means more money in your pocket, even if you had to pay the lawyer. 

4.  Its especially important to "lawyer up", if you lack one or more of the skills needed to win.  For example you may have TBI, or PTSD, and you may not have the skills needed to self represent.  And, its a crapshoot with the VSO's..you never know if you will get competent reprentation until its over.  

5.  "Sometimes" a lawyer will "up front" the cost of a necessary IMO.  

 

Against getting a lawyer at the BVA:

1.  You may have to pay a fee when you "could" have represented yourself successfully.  

2.  In order to represent yourself successfully you need the following resources.  If you lack one or more of the these, your only choice may be to get help.  

     a.  You have to be in good enough health to see this to completion.  (Typically about 4 to 5 years)

     b.   You need computer skills, and the knowledge as well as the motivation to research.  

     c.  You need organization skills..you have to file, store, keep and be able to retreive documents because VA will probably lose some of yours, too.

     d.  You need to be able and  willing to invest money in yourself.  Some examples of stuff you may need to buy:  IMO's, postage and mailing, a VBM.  If you dont have the money for a necessary IMO, then hiring a lawyer to upfront the cost of an IMO may be your only way to get benefits.  

     e.  You have to be persistent enough to keep going until you win.  

Edited April 12, 2020 by broncovet (see edit history)

[capitan]

Wish I had had a lawyer at my BVA hearing. I was denied because the American Legion rep blew it. He was asking for the wrong thing, and I didn't know it. I lost on a technicality, and not on the merit of the case. So, on to the next level I go. Thanks AL!

[pacmanx1]

49 minutes ago, capitan said:

Wish I had had a lawyer at my BVA hearing. I was denied because the American Legion rep blew it. He was asking for the wrong thing, and I didn't know it. I lost on a technicality, and not on the merit of the case. So, on to the next level I go. Thanks AL!

Captain, you should start your own thread, you do yourself and the OP(Original Poster) an injustice by now allowing others to respond to your unique situation.

[kanewnut]

On 4/10/2020 at 7:49 AM, Vetrequest said:

Wanting to know what to expect

I went to the BVA in 2016. I was represented by the DAV. I didn't have a copy of my c-file because DAV said not to request it that I would lose my place in line. So I didn't have a clue when I got there. I went up a day early and tried to talk about what was going on but the DAV rep wan't interested. During the hearing the DAV rep asked if my conditions had gotten worse. Never mentioned SSDI, neither did the judge. The judge was more interested in my headaches. I didn't know why until after I had gotten my c-file. A NP had screwed up a C&P exam showing nothing physically wrong with me, but that I was taking morphine for headaches. I was talking the morphine for my spine issues. Now I know that the issue of SSDI solely for SC mental issues should have been brought up during the hearing. IMO DAV is worthless and everyone needs to educate themselves about how VA operates. The judge may read through your file but that still may not benefit you.