A BVA Denial of your claim is one of those points in time to consider hiring an attorney to assist you in your CAVC Appeal.
When the BVA denies your claim, you generally have 3 Options.
Option #1.
Let the claim "die", and take no action.
The Attig Law Firm rarely recommends this course of action, as recent statistics suggest that the
BVA makes an error of fact or law that affects the outcome of the claim in 60-80% of the decisions it issues.
Option #2.
Request reconsideration from the BVA.
Again, the Attig Law Firm rarely recommends this course of action, as I have not known the BVA to ever change its mind on reconsideration. You have to file your request for reconsideration to the Board within the 120 days to file an Appeal to the Veterans Court in order to effectively toll your deadline to file a Court Appeal. Read the following cases to learn more about Requesting Reconsideration of a BVA Decision and its impact on your deadline to file at the Veterans Court: Linville v. West, 165 F.3d 1382, 1386 (Fed. Cir. 1999), citing Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991)).
Caveat: Every case is different, and the Attig Law Firm is only providing general information. We do not intend to provide legal advice to you regarding a Request for Reconsideration by sharing our opinion with you about the process. It is
always best to
contact an Accredited VA Benefits Attorney to determine whether it is appropriate to seek reconsideration of an Adverse BVA decision under the specific facts and law of your particular case.
Option #3
File an appeal to the Court of Appeals for Veterans Claims (CVC).
The CAVC has the authority to determine if the BVA made an error of law, or an error of application of fact to law, and if so, can do one or more of the following:
- Reverse the BVA denial and grant the benefit sought. This is a very rare outcome from the CAVC.
- Identify the BVA's error, and remand the case back to the BVA for correction of the error.
- Affirm the BVA denial and dismiss the appeal.
At the CAVC, you will have an opportunity to try to resolve your dispute by engaging in what is called a "Rule 33 Conference" with a Staff Attorney at the CAVC and an attorney from the VA Office of General Counsel.
If you cannot agree on resolution at the Rule 33 conference, the Veteran or
surviving spouse will have a chance to file a brief with the court, and depending on the facts and law involved, you may have an opportunity to Orally Argue your appeal
before a panel of CAVC Judges.
What to do next:
When a Veteran or Veteran's surviving spouse receives a BVA Denial in his/her claim, they have to be prepared to act quickly: the Veteran or Surviving Spouse has only 120 days from the date of the BVA Decision to file an appeal in the Court of Appeals for Veterans Claims.
The
CAVC Appeal process is not for the weak of heart. It is a formal Federal Court, with formal rules of procedure, and many rules and deadlines that can trip you up along the way.
The Attig Law Firm routinely represents Veterans before the Court of Appeals for Veterans Claims, and frequently secures a Remand Order from the CAVC directing the BVA to fix certain legal errors that were made.
We don't charge you any fee up front for representation before the CAVC. If we "substantially prevail" on your appeal before the CAVC, then the Attig Law Firm will petition the CAVC and ask the VA to pay your attorney fees and costs under the Equal Access to Justice Act (EAJA).
If we later help you recover benefits on remand of the same issue before the BVA or a VA Regional Office, we will refund any EAJA fees paid from our contingency fee at the BVA or VA Regional Office.
If the BVA has denied your claim, have a complete copy of the BVA Decision ready to send to the Attig Law Firm, and fill out the consultation form on the right side of this page.
