Jump to content
  • 0

BVA Appeal / Lawyer Needed or Not?


Vetrequest

Question

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..

Link to comment
Share on other sites

Recommended Posts

  • 0
  • Subscription Holder

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!  

  • Like 1
Link to comment
Share on other sites

  • 0
  • Moderator

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 by broncovet
Link to comment
Share on other sites

  • 0

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.

 

  • Like 1
Link to comment
Share on other sites

  • 0

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.

  • Like 1
Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

  • Ads

  • Ads

  • Ads

  • Our picks

    • Burn Pit Claim Assistance
      The NVLSP launched its Burn Claim Assistance program:  Details at the NVLSP website:

      https://www.nvlsp.org/what-we-do/burn-pits-claims-assistance-program/
      • 0 replies
    • I have a C&P exam scheduled for next week for sleep apnea. I completed an at home sleep study sent by VES. However, I just visited ebenefits and noticed that my claim has been closed before my scheduled exam. Anyone ever experience this?
      • 11 replies
    • I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently 
      • 20 replies
    • 5,10, 20 Rule
      The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
        • Like
      • 58 replies
    • Post in New BVA Grants
      While the BVA has some discretion here, often they "chop up claims".  For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.  

      I hate that its that way.  The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.  
        • Like
  • Ads

  • Popular Contributors

  • Ad

  • Latest News


  • veteranscrisisline-badge-chat-1.gif

  • Fund HadIt.com

    446%
    $6,698.00 of $1,500.00 Donate Now
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

×
×
  • Create New...

Important Information

{terms] and Guidelines