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

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 by Hucast21
Link to comment
Share on other sites

  • 0
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.

Link to comment
Share on other sites

  • 0
  • Moderator
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.

Link to comment
Share on other sites

  • 0
  • HadIt.com Elder

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.

 

 

 

 

 

 

 

 

 

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.



  • veteranscrisisline-badge-chat-1.gif

  • 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