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..

[ShrekTheTank]

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

[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

[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.