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..

[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

[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.