Board of Veteran (BVA) Appeals
The Board of Veterans Appeals (BVA or Board) is the administrative agency within the VA where veterans may appeal their claim after all appeals have been exhausted at the Regional Office level. The Board is part of the Department of Veterans Affairs (DVA or VA). All staff and Board Members are VA employees.
Board members are Administrative Law Judges, and therefore are licensed attorneys who have been chosen to preside as Judges. BVA Judges have been selected because of their experience as attorneys with VA cases and law. This distinction is important to understand - Board Members are Judges. A single Board Member or a panel may be in charge of ruling on your claim. The possible outcomes are approval of your claim, denial of your claim, or a Remand to the Regional Office who originally handled your claim.
How to Appeal to the BVA
If the VA Regional Office issues a decision about your claim that you are not in agreement with, you have a right to appeal the denial to the BVA. Procedurally, after receiving the decision letter from the VA, you must notify the VA Regional Office that you disagree with their decision through a Notice of Disagreement (NOD). You have no more than one year from the date of the decision letter to submit your NOD. If you miss the filing deadline for the NOD, you lose your earlier effective date. Moreover, failure to "timely file a NOD" results in having to request that your claim be reopened at the VARO. In the case that you file the NOD in a timely manner, the VA will then send you a letter requesting you select either a Decision Review Officer (DRO) review or appeal to the BVA.
Additionally, the letter accompanying the SOC will ask you which type of BVA hearing you desire. You may request one of the following:
- A hearing at the Washington, D.C. BVA offices;
- A hearing with a Board Member who travels to your VARO;
- A video conference hearing (in this case a Board Member remains in Washington, D.C., and you use a designated local VA facility).
If you elect to appeal to the BVA, the Regional Office will issue a Statement of the Case (SOC), which explains how the VARO went about making the decision in your case, the applicable laws, and the evidence the VARO reviewed and applied to reach the decision in your claim. The SOC provides the BVA with applicable facts of the case, evidence, and reference to the laws applied to decide your claim.
Personal preferences, ability to travel, finances (whether you are willing and/or able to pay an attorney's travel fees), and the time to go through the process of a hearing may influence which type of BVA hearing you select.
BVA hearings are considered non-adversarial, VCAA applies, and the VA is required to provide the veteran with reasonable assistance in compiling evidence to prove the veteran's claim. A veteran may still introduce new evidence to support his/her claim at this hearing. If the veteran has a representative, the representative will present the veteran's position and evidence supporting the claim. These hearings are official administrative hearings, with the goal being the resolution of the veteran's claim.
So what does a non-adversarial hearing mean? Under the Veteran Claims Assistance Act (VCAA), the VA is required to assist a veteran procure evidence supporting the veteran's claim. This requirement, however, is often tempered by the phrase "within reason." In reality "within reason" often means if the evidence is not easily obtainable or provided by the veteran, the VA may not expend a great deal of time assisting the veteran. If the VA requests private treatment records, but the records are not sent, the VA has fulfilled their legal obligations. The veteran, however, still needs the private treatment records to support the claim. Thus, VCAA is a two-edged sword for the veteran. The VCAA provides the veteran a means of imposing a duty on the VA to obtain records, and at the same time a reasonableness standard for the VA to claim it has satisfied the VCAA duty.
As noted above applying the VCAA to the term non-adversarial refers to the VA requirement to assist the veteran. Unlike a court of law where there are rules and procedures stating what the opposing counsel must provide to your side, the VCAA places a duty on the VA to assist you in the development of your claim and the evidence to support that claim. The VA, for instance, should request private medical treatment records from your doctor. The process could include a VA employee learning about your private treatment during an interview, a medical evaluation, or may involve you making a formal request for the VA to obtain these records. The VCAA requires the VA to assist you in developing the support for your claim for a disability rating. Unfortunately, overworked VA employees often do not have the time or resources to track down all the evidence possibly available to assist the veteran. This is where the term "within reason" will be used against you if you later claim the VA did not get all the evidence supporting your claim.
When the hearing begins, the Board Member will introduce themselves, discuss introductory materials, and then begin the testimony. Unlike a court of law, the Board Member may direct questions and try to help the veteran develop their claim. If you have a representative, your representative will attempt to present your claim through evidence supporting your disability claim or other VA benefit claim.
During the hearing, you may introduce new evidence that the VA does not have as part of the record. This evidence should be credible, material, and relevant to support your claim. For instance, providing a recent medical report or examination may prove a current disability.
The Board Member will not, in most instances, render a decision at the conclusion of the hearing. There are exceptions, such as when a Remand is obvious due to VARO errors or violations of 38 U.S.C. or 38 C.F.R. directing the VA. The Board Member will issue a decision or Order after reviewing the transcript of the hearing, all the evidence submitted, and evidence contained in the record. After weighing this information, the Board will issue an Order several weeks or longer after the hearing.
The Board will either approve your claim or deny your claim --- both of which are final decisions. The third possibility the Board Member may order is a Remand, which is not a final decision. Even a BVA decision in your favor may not grant you everything you desire, leading you to either drop the appeal of that claim or request further appeals at the BVA (a full panel review for instance), or an appeal to the CAVC.
If the Board denies your claim, you have 120 days to submit an appeal to request your claim be reviewed by the United States Court of Appeals for Veterans Claims (CAVC). Proceedings at this appellate Court are no longer non-adversarial, and you will be opposing VA Attorneys from the Office of General Counsel.
If the BVA approves your claim, the VA Regional Office will be directed to implement your benefits.