A BVA denial might feel like a kick to the stomach, but you can respond with a punch yourself. In no particular order, here are 5 potential responses to a BVA Denial:
- Motion to Vacate the decision
- Appeal to the Veteran’s Court of Appeals (CAVC)
- Filing a claim for Revision
- Filing a reopened claim with the Regional Office
BVA Denial: Which Option is Best?
I know the stress of seeing a denied claim for benefits is overwhelming. For a brief second, lets set aside the stress, anxiety and the impact of the decision and identify four issues that need the Veteran’s attention:
- Are there any impending time limits?
- Can the Veteran submit new evidence?
- Starting on what date (the effective date) should benefits be awarded?
- How will the Veteran’s choice impact their effective date?
Very few veterans know the answer to all four questions. That said, these four questions are darn near critical when trying to figure out how to respond to a final BVA denial.
BVA Denial: New Evidence
New evidence can change or reverse a BVA denial. But, filing a reopened claim to submit new evidence can devalue the sought benefit by thousands or hundreds of thousands of dollars.
In my experience, trying to preserve an effective date while identifying errors in a BVA denial is the strongest strategy when the goal is acquiring the maximum benefit amount.
BVA Denial: Types of Errors to Consider
When considering a potential response to a denial, I like the idea of looking for errors in a decision. Here are a handful of errors that can help a Veteran reverse their denied claim:
- BVA failed at identifying the correct issue,
- The Veteran was never advised or encouraged to submit additional evidence,
- Improper notice as required by Rule 5103(a),
- A clearly erroneous finding of fact,
- An error of law,
- VA didn’t assist the Veteran,
- BVA relied on their own medical opinion,
- An ignored secondary injury,
- Non-compliant remand order,
- BVA failed to reopen the case when they had new evidence.
- Symptoms experienced by Veteran were incorrectly balanced,
- Disability rating was not applied to separate symptoms,
- Diagnosis errors,
- Anything else that didn’t go well.
As you can see, this list is not exhaustive and every error or case unfolds differently.
BVA Denial: How to Appeal or Respond
Unfortunately, this is where one-on-one attention is likely necessary. That said, time is of the essence and I encourage all Veterans to remain proactive with their case.
I hope you contact me. But, if you decide otherwise, I wish you and your family the very best.