BVA Appeals

By Krystal Taylor

Overview

• SDDVA Statistics

• Appeals Deadlines

• Duty to Assist

• Form 10182• BVA Appeals

Review Options

• Types of Evidence

• Preparing Appeal to BVA

• Appeals Writing

• Hearings• Types of BVA

Decisions• Case Studies

SDDVA Statistics

• 2020• Grant 79• Deny 60• Remand 23• Withdraw 5

• 2021 (as of Apr 2021)• Grant 27• Deny 18• Remand 6• Withdraw 2

As of May 2021 - 202 appeals pending at the BVA Level

• 2019• Grant 49• Deny 25• Remand 15• Withdraw 3

2020 Hearings Highlight

Year Total Hearings

2011 29

2012 34

2013 29

2014 36

2015 43

2016 22

2017 10

2018 41

2019 42

2020 92

BVA Statistics

BVA Statistics From May 2021

https://www.bva.va.gov/

Appeals Deadlines

and “Timelines”

• Under AMA there is one “deadline”• Decisions within the last 365 days

• BVA average “timeline” • Direct review

Decision anytime in those 1-2 years• Evidence submission

Decision anytime in those 1-2 years• Hearing

2-3 years wait Decision in 9-12 months after hearing

• No OFFICIAL timeline for any BVA lanes

BVA Days Pending on Average

https://www.bva.va.gov/Appeals_Metrics.asp

Average is an AVERAGE not a promise

BVA Expedited Claims• Expedite due to Age 75

• Age 85 for all other claims, but Board will expedite at age 75

• Homeless

• Terminal

To get a claim expedited, documentation is required

What is Duty to Assist?

• Only with 21-526ez, 21-527ez, 21-534ez and 20-0995• VA will assist in obtaining information and uploading that to VBMS

• Development letters give information on what might help grant a claim• Obligated to review the entire file• VA will request medical records with 21-4142 and 21-4142a• VA will request Military and Veterans Affairs records

BVA & Duty to Assist

• There is NO duty to assist at the BVA level• Identify error in a DTA = remand• Assure VA considered all the evidence before

choosing the BVA• Ask about and include all private medical

documents• Ensure all VA treatment and exams are

available (board will NOT pull new VA treatment)

• BVA will not review the entire file or pull medical records from VA

• The work of the VSO is the only “duty to assist” the veteran gets

• AMA only looks at the file from the date of notification to current

VA Form 10182

https://www.va.gov/find-forms/about-form-10182/

• Part 1 – Claimant’s info

• Part 2 – Board Review Option• Breakdown on next slide

• Part 3 – Evidence and issues• Indicate IF there are attachments of

additional issues or evidence• Check IF opting in from SOC/SSOC (not

recommended) • Date of notification NOT rating decision

• Part 4 – Sign and date • Accredited Representatives can sign

BVA Appeal Review Options

Direct Review Evidence Submission Hearing with VLJ

No Evidence or Statement

Fastest Decision

If you don’t have a lot of timeEvidence is there and nothing to add

Evidence and/or Statement 90 days

Medium timeline

Statement in lieu of testimonyItems that would help claim

Evidence w/10182 or w/in 90 daysafter hearing

Slowest Method

Complex casesCases not presumptive

Changes to the selection can be made on a new 10-182 but should only be made if still inside the 365-day window

Listing Conditions• What are we disagreeing

with?• Service connection• Evaluation• Effective date

• Use wording off the VA rating/codesheet

Preparing and Bringing

Appeal to BVA

• Properly set the veteran’s expectations• Prepare a clear path from beginning to

end• What is the in-service

incident/exposure or is it secondary?• Current condition• Fill in gaps with medical records and

statements to lead toward a nexus• Point out already submitted favorable

evidence• Concentrate only on what is missing

• Favorable findings are considered binding

Types of Evidence

• Inservice incident or Exposure• STRs• Personnel records• Buddy statements • Private medical records

• Current Disability• Current diagnosis

• Nexus• Current doctor opinion• Evidence of continuity of care• Evidence must weigh equally or in the favor of the veteran

Appeals Writing

Formal, but not overly wordy

Factual and not emotional

Include where/when to find information in

VBMS

End with what outcome is desired

Concentrate only on the items needed to grant

the appeal

Remember VA has no duty to assist

Hearings• Video Conference Hearing – Resumed in April of 2020 in SD

• Virtual Hearing – Preferred method and counties can host

• Travel Board Hearing – Being phased out

Hearings – What to Expect

1. Start prep when filing 101822. Hearing scheduled (optional)3. I review the Prep and create

questions for hearings once it is scheduled

4. I will set up a time a week before hearing date with the veteran to go over the case

5. Hearing day we are prepared6. Two to five months later I will

upload the hearing transcript7. Wait for the decision

Types of BVA Decisions

• Grant• Benefits sought were allowed

• Denial• Benefits sought were denied

• Remand• BVA needed more information to make the decision• May not go back to the BVA. VA will fulfill the requirements

listed on the Remand

BVA Grants

• BVA Decision comes from Washington DC

• Regional Office generates the narrative, code sheet, and award Letter

• Months can pass between the VA decision and any payments

BVA Remands

• Opportunities to learn what could have been provided to avoid a remand

• Can be lengthy• Pay attention to

development• Can be

granted/denied by RO under AMA

BVA Denials

• Can be appealed with new and relevant evidence

• Can be appealed up to the CAVC

Ongoing – Case Study

Legacy –Degenerative Changes of the Spine

• 28 Apr 1969 STR

• 13 Mar 2018 Rating

• 18 Nov 2018 NOD

• 14 Aug 2019 SOC

• 08 Oct 2019 Form 9

• 28 Oct 2019 646

• 15 Mar 2021 Hearing transcript

AMA Grant –Glaucoma

Evidence Submission -Polycystic Kidney

• 21 Oct 2020 – Rating Narrative

• 6 Nov 2020 – Med Rec (sent direct by veteran/congressional)

• 14 Dec 2020 – 0995 and statement (sent by SDDVA)

• 21 Dec 2020 – Rating Narrative Denial

• 19 Mar 2020 – 10182 with statement in evidence submission lane

• 31 Mar 2021 – BVA Docketed appeal

AMA Grant and Denial