In June of 2007 veterans gained the right to hire an attorney to represent them at the Regional Office and the Board of Veteran’s Appeals. The attorney will provide assistance in the filing of the appeal and provide representation at Decision Review Officer hearings or Board of Veterans Appeals hearings. If need be, an attorney can appeal a BVA decision to the Court of Appeals for Veteran’s Claims and the Federal Circuit.
Choosing which attorney to represent you before the VA is important for several reasons. You and your attorney will most likely be working together on your claims for several years. Many claims for service connection are very complex and a grant of one benefit may not be the end of the claims process.
It is in the veteran’s best interest to have his or her Rating Decision reviewed by an accredited attorney as soon possible. This will allow the representative to gather evidence and file the appeal before any deadlines.
Denials and Improper Ratings
The VA denies approximately 30% of claims for compensation and pension that are filed by veterans. The most common reasons for these denials include the following:
1) Failure to appear for a compensation and pension examination;
2) No treatment in service;
3) No evidence of an event in service;
4) No evidence of current condition;
5) No nexus opinion, link to service, provided;
6) Other denials specific to the type of claim filed.
The VA often fails to consider all regulations and possible claims in the initial award of benefits. The most common errors committed by the VA when granting an award include the following:
1) The effective date of the claim;
2) the proper rating;
3) the proper diagnostic code;
4) applicability of secondary conditions;
5) consideration of individual unemployability;
6) consideration of inferred claims;
7) other errors committed by the VA that are specific to the types of claims filed.
An accredited attorney or agent will be familiar with these types of denials and errors issued by the VA and will be able to assist the veteran with the appeals process. The representative will be familiar with the laws and regulations of Title 38 of the Code of Federal Regulations, fast letters and memos issued by the VA, the appellate process, and relevant case law.
Accreditation and Knowledge
In the process of selecting a representative for an appeal, it is important the attorney or agent is accredited by the VA and practices at the Court of Appeals Veterans Claims. It is also important that the attorney is a member of the National Organization of Veteran’s Advocates (NOVA) and the National Veterans’ Legal Services Program.
An attorney will review your claims file from the Regional Office, your medical records from the VAMC, any private medical treatment records, your personnel records and the applicable laws and regulations. Upon completion of this review the attorney will be able to advocate on your behalf at every level of the VA appeals process. An attorney will provide argument in the form of a Notice of Disagreement, VA Form 9, Appeal to the BVA and Notice of Appeal to the CAVC. The attorney will be familiar with the forms, standards, rules, regulations and the proper filing of an appeal at the CAVC. Since the VA has attorneys to adjudicate claims at the BVA and the CAVC, shouldn’t you be represented by an attorney?
Evidence and Effective Dates
The appeals process can be difficult and lengthy and veterans need to be aware that if deadlines are not properly met their claims will become final. Once a claim has become final it can be difficult to reopen and the earliest possible effective date will more than likely be lost. Retroactive benefits are awarded to the date of original application in most cases. Once a claim has become final that original application is no longer valid and a reopened claim will not result in benefits back to the original date of application but from the date of the application to reopen resulting in the veteran losing thousands of dollars in benefits.
When your appeal has been denied by the BVA and you have perfected your appeal to the CAVC it is important to understand that no new evidence can be submitted. An attorney may be able to remand the appeal to the BVA and the RO and then be able to introduce new evidence that may be the crux of your claim. This may be the most important reason to get an attorney once a rating decision has been issued, to ensure that all evidence and possible regulations have been considered by the Regional Office. At this time additional evidence can be presented that would result in the grant of benefits, with the earliest effective date and the highest possible rating.
Once a veteran and an attorney agree to work together in the prosecution of an appeal, a fee agreement and VA Form 21-22a, Appointment of Representation, should be discussed in detail and signed by both parties. The fee agreement will always be based on a contingency fee basis. In other words, if the veteran does not receive retroactive benefits then the attorney is not entitled to a fee.
At Moellring and Ambler we have two accredited attorneys and one accredited agent. We have experience at DRO and BVA Hearings. We have had several cases remanded from the CAVC. We help veterans focus on the strongest issues to advance their claims and present the best evidence at the Regional Office, the BVA or the CAVC. At each stage, it is important to have reliable advice in this complex area of the law.