The Board Denied My Claim, Now What Do I Do?

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If you are a disabled veteran who has recently been denied by the Board of Veterans Appeals, then you may have some questions about what to do next.  As a veterans disabilty lawyer, we receive calls from veterans all over the world about appealing a denial by the Board of Veterans Appeals. Here are some answers to the most commonly-asked questions.

“Why do I need a lawyer now?”

Up until now, you made your disability claim inside the Veteran Affairs system. You’ve sent your claim to your regional office. They denied it. You’ve sent your claim to the Board of Veterans’ Appeals. They also denied it.

NOW...you’re appealing your claim at the Court of Appeals for Veterans Claims (CAVC). Fortunately, the CAVC is outside of the Veteran Affairs system. In other words, you are no longer dealing with people in Veteran Affairs.

What’s the difference? The people in Veteran Affairs are bureaucrats – people who sit behind desks and do paperwork. The people at the CAVC level are professional lawyers and judges hired by the government to look at your claim.

“What is the appeal process?

Dealing with your regional office may be confusing, but it can get even more confusing when we throw the CAVC (Court of Appeals for Veterans Claims) into the mix.

The first place you made a claim was to your regional office. When that was denied by a “Rating Decision”, you appealed it at the national level, in Washington D.C., at the Board of Veterans’ Appeals.  Both these places are inside the Veteran Affairs system.

What confuses many veterans is that the Board and the Court are both in Washington D.C. – yet they are not related.

When you appeal to the Court of Appeals for Veterans Claims (CAVC), it is outside the VA system even though it’s in Washington D.C.

“What do I need to know about the Court of Appeals for Veterans Claims (CAVC)?

The most important thing you need to know about the CAVC is that they are an “appellate” court. This means...

All this court does is rule on what’s already there.

You cannot add any new evidence or new testimony.

If the CAVC disagrees with the Board’s decision, you get what’s called a remand, which lets you take your case back to the Board. There, you can reopen your case and then add new evidence, new testimony, and new doctor reports.

“What does the Court (CAVC) look at exactly?

They look at the way the Board of Veterans’ Appeals denied your claims. For example, they want to know --

†  Did the VA give enough reasons or “bases” for their decision to deny your claim? Were they good reasons?

†  Did the VA miss, forget, or not look at an important piece of evidence when denying your claim?

†  Did the VA not use the “best” regulation or set of rules – or did they use an older “set of rules” to make their decision look better?

†  Did you, your family or your friends talk about how much pain you’re in... but the VA claim did not address this properly?

†  Did the VA help you get service records or give you a medical examination when you asked for one? By law, they have a “duty to assist”.

As you can see, the Court of Appeals for Veterans Claims does not look at whether the evidence is right. Instead, they look at how the evidence was analyzed and presented.

If you or your lawyer can find a hole in the VA’s arguments, or how they analyzed your evidence, you will get a remand. A remand lets you reopen your case at the VA level and add new evidence and make new arguments.

“Exactly what can a lawyer do for me?

Here are three important reasons why you should hire a lawyer at the court level:

REASON #1:  You need to punch holes in the Board’s decision. You’re not arguing whether your evidence is right; you’re arguing that the Board did not analyze your evidence the right way. An experienced lawyer can quickly punch holes in the Board’s decision.

REASON #2:  You have to wade through a ton of paperwork. When you file your appeal with the Court, you will probably get a stack of papers, anywhere from 1,000 to as many as 5,000 pages. This is called the Record Before the Agency (RBA). It’s important for you to know how to review everything and find holes in the Board’s decision. Then you must prepare your counter-arguments.

REASON #3:  You need an experienced lawyer working for you because the government’s lawyers are working against you. At the court level, since it is outside the VA, the U.S. government hires skilled lawyers to review your appeal. These lawyers have 10 to 15 years of experience reviewing veterans’ appeals. They work on veterans’ appeals every day. They know all the laws... rules... and technicalities – inside out!

When you hire a lawyer to help with your disability claim, your lawyer will help you...

†  Discover weaknesses and holes in the Board’s decision,

†  Review the mountains of paperwork and prepare the best arguments, and

†  “Fight fire with fire”, since they have professional lawyers working against you.

“How long will it take for me to get a remand?

After your lawyer reviews your case, he will get on the phone with the Court and the VA attorney. They will talk and attempt to negotiate a remand. This will result in one of two scenarios:

SCENARIO #1:  Your lawyer successfully negotiates a remand with the VA attorney. It is then filed with the Court in the form of a joint motion for remand. In this situation, it could take six to eight months to resolve the case.  Or...

SCENARIO #2:  The VA attorney takes a defensive position. (He’s not willing to negotiate, or they can’t reach an agreement.) This means that both sides must now lay out their arguments in a “formal brief” (a really long, detailed legal document). Both your lawyer and the VA’s lawyer submit a formal brief to the Court for review. In this scenario, it could take anywhere from one to one-and-a-half years to decide your case.

“What are my chances for getting a remand?

No one can predict with certainty what will happen in your case.  However, we know from the CAVC Annual Reports that over the past decade the Court has remanded or reversed about 60 percent of the cases that it decided on the merits. 

It can be misleading for an attorney to publish a “success rate” for his cases.  Published success rates can be misleading because most lawyers will not take on extremely difficult cases. This distorts the estimates. A lawyer who takes on any case, and doesn’t choose carefully, will have a lower batting average. A lawyer who is very picky, will have a higher success rate.

On the other hand, the VA is horribly overworked and has historically made a lot of simple mistakes in presenting their cases. This increases the chances of you getting a remand.

“How does a lawyer get paid? Why do they all say it won’t cost me anything to hire them?

Not everyone can afford a lawyer. But it is important to have one.  That’s why Congress passed a federal law called the Equal Access to Justice Act (EAJA).  This law allows the government to pay your lawyer’s fees and expenses.

What’s more, the money the government pays to your lawyer does not reduce or affect any money that you receive from the VA.  This money is not part of your VA benefits.

Best of all, the lawyer will not get paid unless he wins a remand or reversal at the court level. If the lawyer does not get a remand or reversal he will not get paid. This gives your lawyer a strong incentive to win a remand or reversal – because your lawyer gets paid only if he wins.

IMPORTANT NOTE: A remand means you get to reopen your case at the VA level and get another chance to win the case – with new evidence, and new doctors’ reports. It does not mean you have won your case.  Instead, it means that you have won the right to present your case again.  In a case like this, your lawyer may get his legal fees paid under the Equal Access to Justice Act before you win benefits from the VA.

“What happens after I get a remand? Will I get more free help from my lawyer?

Yes and no. Your lawyer may or may not be able to help you beyond getting a remand. Once you get a remand, your case goes back to the VA level. At this point, you want to add new evidence and plug holes in the case so that the Board will not deny your claim again.

Since this is not at the Court level, your lawyer will not get paid under the Equal Access to Justice Act (EAJA).

However, some lawyers will work with you at this level. They will help you get stronger medical evidence and present a stronger case. They will show you how to talk to the VA... in the best way possible, so you get your disability claim approved.

Lawyers who do this usually ask for part of your back pay, usually 20% to 30%.

For example, let’s say you were disabled several years ago, and you’ve been fighting this claim for many years.  Let’s say the VA owes you $15,000 in back pay. If your lawyer helps you get your claim approved, he could ask for a fee of $3,000 (20%) or perhaps $4,500 (30%).

“Is it important for my lawyer to be near the VA or the Court in Washington D.C.?

No, not at all.  The Court of Appeals for Veterans Claims (CAVC) is national. It handles cases from Alaska to Puerto Rico... from Maine to Hawaii. The CAVC handles cases via the Internet, fax, e-mail, telephone or mail. In rare cases, the CAVC may call for an oral argument. If that happens, the CAVC may hear the oral arguments by telephone.

“How do I choose a veterans disability lawyer?”

Choosing a lawyer can be difficult.

Even so, it’s no exaggeration to say that you should have a lawyer represent you.  Why?  Because the VA has highly skilled, experienced lawyers working against you.  If you try to handle your case by yourself, there may be a higher chance of losing.  After all, you lost your initial claim with the VA.  So it stands to reason you could lose your appeal – unless you increase your chances by hiring a skilled veterans disability lawyer to work for you.

Now that you’ve read this guide, you know that the process for getting a remand from the Court can take many months.  So ask yourself:  Who are you comfortable working with over the next several months?

Big disability law firms usually have hundreds of cases on their desk.  In fact, you may only rarely to speak with a lawyer.  Instead, you may have to work with a law clerk or secretary.

Sole practitioners (the lawyer who has his own office) may be quite busy because they’re a one-man law firm.  A sole practitioner may not have more than a few minutes to speak with you.

After you speak with various veterans disability lawyers, then choose the veterans disability lawyer you feel most comfortable working with.  Frankly, most of the lawyers that concentrate their practice exclusively in veterans’ law are highly competent.  You’d be in good hands with any of them.  Pick the one you feel comfortable with.  As a veterans disability lawyer with many years of experience, I encourage veterans to pick a VA benefits attorney for their CAVC appeal who has litigated at least 200 appeals at the U.S. Court of Appeals for Veterans Claims.  Keep in mind that there are VA appeals lawyers who practice almost exclusively at the regional office or Board level and never take cases to the U.S. Court of Appeals for Veterans Claims. 

 

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Related topics: Board of Veterans Appeals | CAVC (3) | U.S. Court of Appeals for Veterans Claims

Eric Gang

Eric A. Gang, Esq. is a veterans’ disability attorney who represents disabled veterans nationwide in their appeals for VA disability benefits. He has litigated over 500 appeals at the U.S. Court of Appeals for Veterans Claims and has recovered millions of dollars in retroactive benefits for disabled veterans. His work has been mentioned in media outlets across the country. He publishes and lectures widely in the area of veterans benefits. You can reach him at (888) 878-9350 or www.veteransdisabilityinfo.com.



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