BVA Decisions, Hearings, and Claim Eligibility

Category: Veterans Disability Law

Article by Aaron F. Tuley

If you receive an unfavorable VA decision on your disability claim, you may be looking to appeal your regional office’s decision. There are multiple routes by which you can do this, some easier than others. Depending on the complexity of your case and the actions required, you may not be able to use one of the streamlined appeal lanes. To properly alter VA’s initial decision, you may need to submit your case to the Board of Veterans’ Appeals (BVA) for review.

What Is the Board of Veterans’ Appeals?

The BVA is an appellate body that oversees VA, or the U.S. Department of Veterans Affairs. The BVA has the authority to overrule decisions made by VA regional offices. This grants them the ability to reverse or revise veteran disability rating decisions.

Veterans use the BVA to appeal or challenge unfavorable VA rulings. All BVA reviews are de novo, meaning the Board cannot use any prior decisions as precedents when deciding upon your case. Each claim will be reviewed with fresh eyes to ensure the decision is made based purely on the evidence presented.

The Board of Veterans’ Appeals can hear any rulings that involve VA benefits, the individuals receiving VA benefits, or the individuals applying for VA benefits. It is typically the claimant’s decision whether or not to involve the Board in their appeal process.

How Does the VA Board of Veterans’ Appeals Fit Into the Decision Review Process?

Under the Appeals Modernization Act (AMA) that went into effect in 2019, there are three primary lanes for veteran appeals. AMA was intended to streamline the appeals process by creating more options based on the specifics of a veteran’s case.

Filing a Notice of Disagreement (NOD) directly to the Board of Veterans’ Appeals is the only lane that requires the Board’s involvement from the get-go. This lane is typically used in the decision review process for more complex cases that require more than just extra evidence or a second look. This lane can also be used if one of the other lanes does not provide the desired decision.

Higher Lane Review

One of the other lanes a veteran can use to appeal their initial rating decision is Higher Lane Review (HLR). This lane involves the entire case being reviewed by a senior VA claims adjudicator. No additional evidence may be presented, and any information that was submitted after the initial decision will not be considered during HLR.

Less experienced adjudicators have been known to miss certain exceptions that could change the ruling of a case. The VA list of presumptive conditions includes a variety of disabilities that do not require the veteran to prove service connection. If a rookie adjudicator misses one of these conditions and denies service connection, a claimant may ask for their case to be reviewed by a more experienced VA representative who will not make the same mistake. This can also be useful when dealing with conditions or time periods that have a high volume of legislation changes surrounding them.

Supplemental Claims

The third and final veteran appeal lane under AMA is the supplemental claim. Supplemental claims are perhaps the most useful lane for veterans and for VA itself. A supplemental claim allows the claimant to submit additional information in the form of lay statements, medical records, or other related documents for consideration.

If a claim lacks the necessary evidence to qualify the veteran for compensation, VA will often return the case decision with a prompt for the required documentation. An example of this might be a current diagnosis. If a veteran submits a claim with all the information and records to prove their disability is service-connected but does not have a current diagnosis from a medical professional, VA might implore them to go to the doctor’s office and receive one. This current diagnosis can then be submitted in a supplemental claim.

While HLR employs a more experienced adjudicator, supplemental claims are decided upon by the same regional officers as the initial claim.

Which Appeals Are Eligible for VA BVA Review?

As mentioned above, veterans can submit any claim decision directly to the BVA if they believe that’s the best option for their case. Veterans can also submit denied claim decisions from the HLR and supplemental claim lanes for review. Depending on the nature of the denial, veterans can also submit a case denied by the BVA for BVA review with different information or focusing on a different aspect of the claim.

How Notice of Disagreement BVA Decisions Are Made

Assuming the veteran has a complicated case or a case that has previously been denied in another lane, the Notice of Disagreement Lane has three subcategories that a veteran must choose between when filing an appeal—direct review docket, evidence docket, and hearing docket. The way the Board proceeds with making decisions depends on which docket the veteran opts into.

Direct Review Docket

The fastest of these three dockets is the direct review docket or direct docket; this docket does not require a hearing or the submission of new evidence. The direct review docket merely calls upon the Board to review the evidence present at the time of the original regional office’s decision. The Board will not consider any new evidence presented after the original claim.

VA attempts to issue direct review docket decisions within one calendar year. Every claim has a target distribution date that takes into account the 365-day goal while also acknowledging the average time it takes to issue a decision when the case is assigned. Depending on the number of cases a Veterans Law Judge is handling at any given time, it may take longer to issue an appeal decision within the one-year deadline.

Evidence Docket

Similar to the direct docket, the evidence docket does not involve a Board hearing. However, this docket does allow claimants to supplement their claims with additional information. New evidence must be submitted at the same time as a Notice of Disagreement or in the following 90 days directly after. Evidence can come in the form of service records, lay evidence, buddy statements, medical records, and other documents. VA will consider all evidence offered by the claimant which supports the issue or argument being appealed.

Decisions in the evidence docket are made based on the combination of evidence that was present during the initial decision and evidence submitted within the 90-day window as a part of the supplemental evidence. The Board will also include a decision summary that includes all evidence considered and instructions on how to access the evidence the Board used to make the final decision.

This docket may be good if you have additional evidence, but don’t want a hearing. Scheduling a hearing can result in significantly longer wait times. The Board states that the evidence docket route could take longer than one year; the hearing docket is known to take longer than the evidence docket because it adds an extra step.

Hearing Docket

The final docket is for veterans who want to submit additional evidence AND have a hearing in front of the Board. The hearing docket involves an in-person court appointment that allows claimants to present information directly to the Veterans Law Judge. Claimants are technically entitled to a hearing on any appeal issue they don’t agree with. To elect the hearing docket option, claimants must request a hearing with the submission of their Notice of Disagreement.

It is the Board’s duty to notify claimants or their representatives of their scheduled hearing at least 30 days before the actual hearing date. This allows veterans to get any additional information organized and request a hearing date change if there is a good reason. The claimant is also entitled to a hearing transcript from the Board upon request.

During the hearing, the Board will make its decision based upon the following information:

• Any evidence that already existed on record when the original claim was submitted
• Any evidence that was submitted by the claimant during the hearing to be included in testimony as a part of the appeal case
• Any evidence the claimant submits in the 90 days following the Board hearing

Evidence submitted after the initial rating decision but prior to the hearing will not be considered. This includes any additional information from supplemental claims or prompted by VA after the initial decision. While the hearing docket is the most thorough and typically offers the most benefits, the positives can sometimes be outweighed by long wait times. Board hearings take a long time because they involve the submission of new evidence and the scheduling of an actual meeting with the Board. If the BVA is overwhelmed by other submissions, a veteran may have to wait a substantial amount of time before receiving a hearing.

Who’s on the Board of Veterans’ Appeals?

The BVA comprises a variable number of Veterans Law Judges, a chairman, and a vice-chairman. The Board of Veterans’ Appeals Judges, also called “Members of the Board,” are responsible for handling the majority of veteran appeals. The number of board members changes depending on the number of appeals received at any given time.

Along with the chairman, vice-chairman, and board members, there are also attorneys and an extensive administrative staff that help the judges fill out paperwork and review claims, and BVA customer service representatives help funnel veterans in the right direction. Together, they work to decide upon as many appeal submissions as possible. At the end of the year, the chairman is responsible for preparing a summary report of the Board’s activity. This report helps predict staff needs and appeal bandwidth for the following year.

What Is the U.S. Court of Appeals for Veterans’ Claims (CAVC)?

If you receive a BVA decision you are not satisfied with, you can appeal it through the Court of Appeals for Veterans’ Claims (CAVC). The CAVC is a federal court located in Washington D.C. that has jurisdiction over BVA decisions. When it comes to veteran disability claims, The CAVC is one of the highest judicial powers in the country.

Other options for appealing BVA decisions include the following:

• File a supplemental claim with new and relevant evidence that could lead VA to a new decision.
• Appeal directly to the Board in hopes it will reconsider the initial decision.
• Appeal to the Board on the basis of clear and unmistakable error (CUE) if they made a substantial mistake.
• Appeal to the Board asking to throw out its decision and begin the process over again.

Hiring a VA Disability Lawyer for Claim Appeals

Due to high volumes of disability claims and human error, there is no guarantee that the Board of Veterans’ Appeals’ decisions will be correct. If you’re not completely satisfied with your VA Rating Decision, the next step is to contact a VA disability lawyer. A good attorney will help you decide whether or not your decision is accurate, and how to proceed if an appeal is necessary.

Contact Tuley Law Office

Our VA disability lawyers at Tuley Law Office have the knowledge and experience to get you the compensation you deserve. Allow us to answer the questions you may have in regard to BVA. The longer you hesitate to hire an attorney, the higher the risk you will lose potential VA benefits. If you’re looking for quality attorneys you can trust, contact our law office today.

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