What Should I Do If the Board of Veterans’ Appeals (BVA) Remands My Claim(s)?
So you just received your Board decision from the Board of Veteran Appeals (“BVA” of “Board”) and eagerly skim through pages of discussion to find the outcome. Did they agree that you should receive disability benefits at the rating level and 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 increased rating.
This is a remand, which is preferable to an 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 next steps after receiving a BVA remand or denial.
The Board of Veterans’ Appeals Remanded My Claims, What Do I Need To Do?
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 continue 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 that the regional office will need to do on the claim.
Unfortunately, the VA has no choice but to comply with Board remand instructions. This can seem unfair in many circumstances where you have already spent a great deal of 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 it is important the VA 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 his/her own. VA staff who also receive the Board decision, or the outsourced examiners office, will contact you by phone or mail to give notice of the date, time and place of the medical appointment.
The Board may also instruct the regional office to obtain the veteran’s outstanding medical treatment records, which the VA previously neglected to get. For a PTSD claim, the Board may tell the regional office to advise the veteran to obtain buddy statements or other information to corroborate his/her alleged in-service stressor(s).
Is there anything I can do during the remand process?
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 your treating physician or therapist to support your 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 of the Board remand instructions have been completed the VA will send out a new Rating Decision with their new 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 ratiting 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.
The Board of Veterans’ Appeals Denied My Claims, What Do I Need To Do?
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 no doubt 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 difficult 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 important evidence, such as the claimant’s service or post-service medical treatment records, employment records, 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.
All of these examples have one thing in common: they deal with procedure, not with 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 certain procedure, the court will remand the case, instructing the Board what it did wrong and how to correct the error. (See the discussion of remand procedures, above)
When should I contact a VA Disability attorney?
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 very difficult time navigating his/her way through the system. For example, when a claimant appeals to the CAVC, he or she 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 will be able to 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 upon 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 up front 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 making sure the VA follows the proper instructions or with gathering 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 possible. 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.
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If you are a veteran, or a family member of a veteran, whose work has been affected by their disability and who would like to appeal a VA benefits decision, we would like to speak with you.
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