So you just received your Board decision from the Board of Veteran Appeals (“BVA” of “Board”) and eagerly skimmed through pages of discussion to find the outcome. Did they agree that you should receive disability benefits at the rating level and the amount you believe you should?
After years of pursuing appeals for one or more of your VA claims, they will reach the Board of Veterans Appeals (“the BVA” or “the Board”). Obviously, you are hoping they will make a final decision in your favor.
If they granted your claim in its entirety, you’ve probably danced a gig around the room and just want to know when you’ll receive your first check. If they didn’t, however, understand that it is common for the Board to defer a final decision and send your claim back down to the regional VA office to gather more evidence/information. This is true of claims for service-connected disability as well as of claims for an increased rating.
This is a remand, which is preferable to outright denial. However, even if the Board denies your claims, there are additional steps you can take to try to reverse that decision. This article will walk you through the following steps after receiving a BVA remand or denial.
Receiving a remand from the BVA is a mixed blessing. On the one hand, the Board has not denied your claim(s), allowing you to proceed with your case. Yet, on the other hand, the battle to get your entitled benefits continues without any apparent end in sight. A “remand” means that your case needs to go back for something specific to be done to better explain/support your claim. That can be useful for you.
If you receive a Board remand, the most important thing to do is to carefully review the last part of the Board decision, which has the instructions for the remand. These instructions can be found following the Board’s statement:
“The matters are REMANDED for the following action:”
The item(s) listed are the actions the regional office will need to take on the claim.
Unfortunately, the VA has no choice but to comply with the Board’s remand instructions. This can seem unfair in many circumstances where you have already spent much time and effort complying with other VA instructions and developing your claim. However, if the Board, in its instructions, requires additional development, such as an exam or medical opinion, the VA must comply, and you participate, or your claim will be denied.
Typical remand instructions involve medical or factual evidence development. For example, the remand instructions may call for the scheduling of another VA examination (“C&P Exam”). If that is the case, there is nothing you, the veteran, need to do on your own. VA staff who receive the Board decision, or the outsourced examiner’s office, will contact you by phone or mail to give notice of the medical appointment date, time, and place.
The Board may also instruct the regional office to obtain the veteran’s outstanding medical treatment records, which the VA previously neglected. For a PTSD claim, the Board may tell the regional office to advise the veteran to obtain buddy statements or other information to corroborate their alleged in-service stressor(s).
Most of the time, the local regional office is responsible for carrying out the Board remand instructions.
However, you should be proactive during a Board remand. Veterans should use this stage of the case to bolster their claims by submitting relevant additional evidence, such as an opinion letter from their treating physician or therapist, to support their claim. Keep this evidence in the scope of direct relevance to the missing areas of evidence indicated in the remand. Too much of the wrong information may confuse the VA.
When all the Board remand instructions have been completed, the VA will send out a new Rating Decision with their latest findings. You will want to review the Evidence section of the Decision to make sure all of the submitted evidence is listed, such as opinion letters from your treating providers, results of additional medical examinations, and such. Read more about rating decisions here. If not all of the submitted evidence is listed, you should bring this to the VA’s attention if and when you appeal the decision.
Receiving a denial from the Board of Veterans’ Appeals (“the Board” or “the BVA”) can be an overwhelming experience. After battling with the VA for years, you are undoubtedly frustrated and angry over the result. Added to your disappointment is the difficulty in figuring out why the Board denied your claim. Board decisions are usually written in gobbledygook language, which can be challenging to understand.
The main thing to keep in mind is: DON’T THROW IN THE TOWEL!
Always consider taking the next step to the Court of Appeals for Veterans Claims (“CAVC”). More times than not, the CAVC finds that the Board has committed one or more errors in denying your claims.
In our firm’s experience, the Board usually makes many mistakes, and we’ve compiled a list of common errors. Some of the most common mistakes are:
• The Board gave inaccurate or inadequate reasons for denying your claim(s).
• The VA, either at the local regional office or the Board, failed to obtain necessary evidence, such as the claimant’s service or post-service medical treatment records, employment records, and military personnel file, to name a few examples.
• The Board applied the wrong law or misapplied the relevant statute, regulation, or VA directive.
• The Board failed to adjudicate (make a decision on) one of the claims.
• The VA, either at the local regional office or the Board, failed to schedule you for a necessary VA examination.
These examples have one thing in common: they deal with the procedure, not the merits of the claim.
In other words, at the CAVC level, the court rarely decides whether to grant or deny claims on the merits or facts of your disability. In the vast majority of cases, the CAVC determines whether the Board has committed an error in procedure or the manner in which it denied your claims.
If the CAVC determines that the Board erred in carrying out a particular procedure, the court will remand the case, instructing the Board on what it did wrong and how to correct the error. (See the discussion of remand procedures above)
An experienced veterans’ disability law firm can make a big difference in the outcome of Remands and appeals to the Board and/or the CAVC. The government has a battery of experienced attorneys who will try to defeat your case at the CAVC, whereas you have little to no experience. Without attorney representation, your battle against the VA will hardly be a fair fight.
An experienced law firm will be familiar with the highly technical terms and legal concepts used by the Board and CAVC. Without representation, a claimant will have a tough time navigating the system. For example, when a claimant appeals to the CAVC, they will get a mass of paperwork related to their appeal, called the Record Before the Agency (“the RBA”). Much of this material is irrelevant, and much of it contains highly technical medical and legal documents. An experienced attorney can quickly determine which documents are relevant to your appeal.
An experienced law firm will most likely be needed to prepare an appellate brief at the CAVC. The CAVC decides appeals only based on the veteran’s and the government attorneys’ written submissions, called appellate briefs. Preparing persuasive appellate briefs requires substantial knowledge of VA law and familiarity with the legal writing style.
An experienced law firm will have a lot of resources to use on your behalf to show the merits of your claim, including computer research, a trained staff, medical and vocational expert consultants, and decades of real-world experience with the VA system.
The good thing is that you don’t have to come up with money upfront to hire a VA Disability law firm. They generally work on contingency and only get paid once your case has been won.
You may also hire an attorney to assist in the Remand portion of your decision. An attorney can assist you with ensuring the VA follows the proper instructions or help you gather necessary information or evidence to support the VA granting your claim.
The Veterans Law Group has helped many veterans through the VA Disability appeals process and sought the maximum benefits. Though Board and CAVC processes may seem daunting, a lawyer can help take some of the pressure off, monitoring the collection of new information on remands, preparing appeal briefs, and more.
The VA system can be confusing, but a knowledgeable VA Disability law firm can walk you through the process and optimize your chances for a successful and accurate outcome.
Call today to set up a confidential consultation and get the assistance and compensation you deserve.