Remand from Court back to BVA Question

[capitan]

I was denied at the BVA. Hired an attorney, and the Veteran's Court has remanded my case back to the BVA. What do I have to look forward to? The Attorney wants to continue representing me at the BVA and RO, for 20% of backpay which could be substantial and I have no problem with. Advice appreciated.

Edited November 14, 2020 by capitan

[broncovet]

I did it BOTH ways:

1.  I got a remand (from CAVC)  with a law firm who ALSO represented me at the BVA.  The attorney asked for EAJA fees from the court and got them.  Those were deducted from the 20 percent I paid.  Here are the numbers:  I owed the attorney 7000.  They received 6000 from EAJA.  

I paid 1000 dollars to the attorney.  

2.  I also got a remand and (a different attorney) DECLINED to represent me at the BOARD.  Ok, I will tell you why.  He thought I was smart enough to represent myself, (at the Board), AND, he has a market niche where he does not "do BVA" cases.  (He sticks to cavc or above).  In this instance, the attorney got paid out of EAJA fees, again, and I took my attorney's advice and got an IMO..from a person he gave me the name of.  The IMO did the trick, and I won at the Board my EED.   I paid zero fees.  

 

      On the issue of "whether or not" you should have an attorney at the BVA in my opinion "turns" on what your levels of confidence on these things are:

1.   Are you organized enough to keep your documents and know where they are?

2.  Do you have the research skills to search case law and interpret it?  

3.  Are you healthy enough to "wait it out"?  

4 .  Are you persistent enough to keep fighting until you win? 

      "If" you meet the criteria, above, you can probably represent yourself at the BVA.  But, if you are disorganized, dont have research skills, are very sick, or not persistent, then hire a professional to fill in those gaps for you.   

 

Edited November 15, 2020 by broncovet

[capitan]

Broncovet, Let me get this straight, correct me if I'm wrong. My attorney just got a remand for me at CAVC. Now that my case is out of that Court, he wants to represent me back at the BVA and RO. For 20%. Did he receive pay from EAJA, and not me, at EAJA? Now he wants to start a new agreement for 20%, is that a one time fee from whatever is awarded me, including backpay? It's been close to 7 years. Got any idea how long it will be? i don't mind the 20%. Service connection is the most important thing to me. He told me a remand at the CAVC means they admit they made the wrong decision. I hope they're right. Don't I have the right to know why the Court remanded it. and why the original BVA decision was a denial. And what the attorney's plan is for a grant this time? Thanks

Edited November 16, 2020 by capitan

[pacmanx1]

If you have your docker number, you can look it up yourself depending on how long ago was the CAVC remand decision.  My attorney won my remand several years ago and I have been fighting VA for the correct rating since they got the effective date corrected.  I received several retro payments but not for the entire time of my appeal so hopefully this all will be resolved soon, and I can move on with no further battles. The EAJA paid for my attorney fees and all my benefits came directly to me but unfortunately, VA has been screwing my rating percentage up. Once your claim goes back to BVA they will have to decide if they will grant your claim, then  it will still have to be remanded back to the local VARO for rating purposes. This is a good thing, but it will still take some time, and no one knows what VA will or will not do. As Bronco stated above, you do not need a lawyer for BVA. In my experience it may be a little faster but so far, I am fighting through, it just takes a little longer. Now with the AMA it may be a little faster but who knows. 

Here is the CAVC decision search site.   

http://www.uscourts.cavc.gov/docket_search.php

 

[Berta]

It might be one of the recent 16 CAVC decisions here:

http://www.uscourts.cavc.gov/recent_decisions.php

You said:

"Don't I have the right to know why the Court remanded it. and why the original BVA decision was a denial. And what the attorney's plan is for a grant this time? Thanks"

Yes you do have the right to know why- Since the attorney has the remand ,you should have received it as well

Do you have the original BVA decision? That too can be found by Docket # at the BVA search feature:

https://www.index.va.gov/search/va/bva.jsp

 

 

[Buck52]

@ Ms berta

Do you know of any BVA Cases on the Docket for FILING HISTORIC AUDIT Claims?  FOR RETRO AND SMC S H.B?

Say a Veteran has his claim adjudicated in 2003 to and was 90% but due to his service connected disability  they inferred  him the TDIU P&T AND HIS DISABILITY WAS NOT EXPECTED TO IMPROVE WITHIN HIS LIFETIME, AND THIS IS HIS SINGLE DISABILITY AND WAS NOT INFERRED THE SMC S House Bound at this time /date (2003)      he went until 2015 and filed another claim  AND GOT 70% RATING , IT WAS A SEPARATE CLAIM AND BEING IT WAS OVER 60% RATING  this made him eligible for the SMC S Housebound AND they did give him the SMC S then   what about the previous years? for the SMC S?.

  QUESTION (is a 90% Veteran considered to be  also 100%  being he gets the same benefits as a 100% scheduler Veteran?  FOR SMC -S House Bound? 

the kicker here is the Veteran filed another claim IN 2015 and was Rated 70% so this along with his 90% TDIU made him eligible for the SMC S House Bound  and they inferred the SMC S H.B at this time 2015 for the SMC S...  Was he actually eligible at the time they inferred the TDIU IN 2003?  to 2015  the in between here. 2003  to 2015 for the SMC S H.B.  12 YEARS OF BACK PAY FOR SMC S H.B. RETRO OWED TO THIS VETERAN...CORRECT?

ALTHOUGH HE WAS 90% S.C. him having the TDIU P&T as a single disability  would that make him eligible for the VA to infer the SMC S House Bound? as Howel v Nicholson...or Howell v Peck  < not sure  of the spelling on Pecke.

Also on the historic Aduit   that would be to check his retro that was paid to him WHEN HE GOT THE TDIU 2003 and the historic audit would be to make sure they paid him correctly.

if it was not paid correctly then the veteran would need to provide his evidence as to why he thinks he was not paid the correct retro.

My understand is when a Veteran is rated TDIU P&T  NO MATTER WHAT HIS RATING WAS BEFORE THE TDIU  AND GETS THE TDIU P&T INFERRED  HE IS MEANT TO BE AS POR THE SAME RATING   A 100%  VETERAN AND GET THE SAME BENEFITS AS THE 100% SCHEDULER VETERAN...CORRECT?

IF THEY MADE HIM TDIU P&T      >THEN ON THE ADUIT HE ONLY WOULD NEED TO PROVE IT BY HIS AWARD LETTER  DATES AND THE AMOUNT OF RETRO HE DID RECEIVE BACK THEN AND   NOT need to provide period evidence from back then that he was actually housebound in fact. A doctor would have to make that call based on a detailed reading of his claims file and medical records.  the audit officers would check his c-file  correct?

in other words being the Veteran wanted an all out audit on his claim back from 2003  to 2015   then the Audit officers would need to check all this  not the Veteran  right?

[Berta]

"In order to qualify for SMC at the housebound rate, the Veteran must have a single service-connected disability rated 100 percent and either: (1) has an additional service-connected disability or disabilities ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of a service-connected disability or disabilities.  Permanently housebound means the Veteran is substantially confined, as a direct result of a service-connected disability or disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the service-connected disability or disabilities and resultant confinement will continue throughout his lifetime.  38 U.S.C.A. § 1114 (s) (West 2014); 38 C.F.R. § 3.350 (i) (2016)."

https://www.va.gov/vetapp17/files6/1735560.txt

As I mentioned in a fairly recent post here, my husband was obviously 100% plus 60 independent - and won the CUE because they never considered him for SMC "S".

But I also proved he was HB as well ( I had to obtain a LOT of medical info from his VA med Recs, to prove that during his lifetime he was eligible for SMC HB. I mentioned some of my proof in a different post here the other day....

He was awarded posthumously under both theories but VA only paid one retro S award.

They still owe me cash on that decision, but not on the HB award.

We would need to see the remand you are referring to- I mentioned here recently to the affect that that I think VAROs are not able to really determine many SMC HB awards, as they involve a lot more than the SMC S 100 plus 60 criteria.

If this vet on remand, and has a lawyer, they would know how to raise any retro HB potential. Because they would have access to the complete medical file of the veteran and the decision he received that denied or did not infer HB.... yet the VA had evidence enough to have inferred it.

You would think that any vet with 100% SC for PTSD P & T and on top of that 100% under 1151 due to multiple TIAs and stroke would be obviously housebound- but as I stated, I had to prove HB- there was no way the RO was going to review his stack of VA medical records in order to infer HB-

I had to do that.

 

 

 

 

Edited November 16, 2020 by Berta
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