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Welcome to The Veterans Disability Nexus, where we provide unique insights and expertise on medical evidence related to VA-rated disabilities. Leah Bucholz, a US Army Veteran, Physician Assistant, & former Compensation & Pension Examiner shares her knowledge related to Independent Medical Opinions often referred to as “Nexus Letters” in support of your pursuit of VA Disability every Tuesday & Wednesday at 7AM Central.
Take control of your medical evidence related to your benefits and visit https://podcast.prestigeveteranmctx.info/veteran/ for more information and to connect directly with us!
Hey, guys. It's Leah b here from Prestige Veteran Medical Consulting. I'm a US army veteran, physician assistant, and former compensation and pension examiner. Today, I have Rebecca Deming on from ProVet Legal. She is a VA disability attorney out of Florida, and she has been on with us several times.
Speaker 1:And we we have a lot of really positive feedback about the information she provides. So we were gonna come on today and discuss the BVA or the Board of Veterans Appeals and, just tap into her knowledge base about that. So, Rebecca, can you sorta introduce yourself for those of, our viewers who haven't seen you before?
Speaker 2:Sure. Thanks, Leah. Rebecca Deming here. I am a spouse of a twenty seven year Navy veteran, and I run a law firm called ProVet Legal, and we specialize in helping veterans get the benefits they deserve and family members or survivors also in in the survivor benefit claims. So that's exclusively what we do.
Speaker 2:And so I love talking with you, Leah, because I know you provide a lot of great information for people trying to work on their claims. And, hopefully, we can together get them some some good information that helps them understand the system better and and Mhmm. Figure out when to tap and help and, make decisions on their own.
Speaker 1:Awesome. So just to launch right in, can you tell our viewers what the BVA is or what what, what does that mean when when we hear that term?
Speaker 2:Sure. Yeah. That that's a great question. I think there's a lot of confusion about it. So, I mean, I could I could go on a dissertation about about the structure of administrative law.
Speaker 2:But, essentially, the board of veterans appeals is a part of the department of veterans affairs. So it does fall underneath the the secretary of veterans affairs, which right now is Doug Collins. And but it's you've got board members who most people call veteran law judges. And so their attorneys they've got staff attorneys that work with them. And so you really have a kind of higher level of of legal review of of the, merits of your case.
Speaker 2:They're gonna they're gonna do a better job applying the complex laws, and and really digging into the the nuance and making sure that VA's complied with its duty to assist and and all of that stuff. They're not perfect. There's a court that actually has federally appointed judges, which are separate from the veteran law judges, but federally appointed judges at the court. So if we're not happy with the board decision, we go to the court. And I know there's confusion between those levels, and there's also confusion sometimes people have between, like, what's the difference between a higher level review where I have a decision review officer and going to the board where I've got a veteran law judge or a a board member.
Speaker 2:Officially, it's a board member, veteran law judge looking at, at the case. So, yeah, the decision review officers are typically not attorneys. They're just more experienced VA employees.
Speaker 1:So not to get too into the weeds, but when you mentioned, federally appointed, judges, are the are the BVA judges or better the VLJs, are they appointed, or how do they get those positions?
Speaker 2:They get high you know, I'm not totally sure what the hiring process is, but they get hired through the, Department of Veterans Affairs. The secretary of Veterans Affairs has the process the under secretary has a process for hiring and appointing Mhmm. Their veteran law judges. And, I I think some some may be political favors, but I think most are merit based. They've had some experience, in the VA law Got it.
Speaker 2:Sector before they they get the job as a veteran law judge.
Speaker 1:Got it. So how does a case get to the BVA in the first place?
Speaker 2:That's a great question. So since 2019, we're in what's called the Appeals Modernization Act. Mhmm. And so that puts a lot of choice back in the veteran's hands. And so, basically, as soon as you get a decision, any decision at VA, you have different appeal lane options.
Speaker 2:And so you could file a supplemental claim and add more evidence. You can file a higher level review and have one of those decision review officers I talked about, who's not an attorney typically, but, a more experienced VA employee look at your case. Or you can file an appeal to the board, and you use form one zero one eight two. That's one zero one eight two is the the board appeal form. And it's really just a there's instruction pages, but it's really just a one page form that you fill out saying you disagree with the the decision.
Speaker 2:You put the date of the decision that you disagree with on there, what conditions you disagree with. Mhmm. And then you wait. And and so it's the one page form to fill it out. There's I might be jumping ahead, Leah, but there are different lanes.
Speaker 2:There's different types of appeals even at the board that you can opt. And so, you can always send in argument, in addition to just that one page. You can always send in, a memo or something explaining why you think VA got the decision wrong and and what you want to do with your case. And then depending on what appealing, you can also sometimes send in additional evidence.
Speaker 1:So what happens at a BVA hearing?
Speaker 2:Yeah. So one of the lanes that you can select is hearing lane. Mhmm. Usually, don't encourage people to select that lane unless there's some reason why oral testimony you know, they just wanna have their day in court in front of a a veteran law judge, or there's some reason why having that oral testimony is really gonna help out their claim, because the wait time at the hearing is for a hearing is so long. So we're seeing the the wait time for a regular direct review is somewhere between one and two years kind of on average these days.
Speaker 2:For a a hearing, it's really three to five years, sometimes even longer just to have the hearing, and then it can be another year after the hearing for a decision.
Speaker 1:Oh, wow.
Speaker 2:So, yeah, so that just to give you a little background on what a hearing is. But they're really they're informal hearings. So I think people get all antsy about, you know, what's gonna happen. Most of them now are done on a video conference. So as long as you have Internet at home and you can click the link, you can do it from home.
Speaker 2:If you don't or if you're not comfortable that your Internet's gonna go through or you're not tech savvy, I'm sure most of the people watching your YouTube videos are probably pretty tech savvy. But, if you're not, you have the option to go into a VA, just a regional office, and they'll set up the video equipment for you so you can meet with the veteran law judge remotely. And then these veteran law judges are often doing the hearings from their home. They have a, you know, a room set aside. And they're gonna talk to you about the claim.
Speaker 2:They're gonna explain what information you can you can share. They're gonna gonna verify what conditions are on appeal. And then if it's just you, they'll kinda turn it over and let you let you talk. Mhmm. When I am doing it with a client, I'll kinda treat it like a, a direct examination where I'm asking questions.
Speaker 2:I can ask leading questions. There's no, issue with me leading a a veteran, you know, and say, you know, you told me this before. Like, remember you know? So if people kind of forget what they wanna talk about, it can be really helpful to have an attorney kinda make sure that you're staying on track and making sure that you're sharing information that the, veteran law judge needs. Mhmm.
Speaker 2:But there, it's nonadversarial. So in a regular courtroom, you know, you've got some somebody cross examining you and saying, well, isn't it true that, you know, on this date, you said this, and now you're saying this, and you're trying to catch you in a lie? The veteran law judge is really, their job is to help you lay out your case as best you can. And so if they think you're missing evidence, they'll tell you, hey. It would be really helpful if you could go get a a letter from your doctor that explains how this is connected or go get a nexus letter or, you know, totally understand this, but we don't have a diagnosis.
Speaker 2:Can you get a diagnosis? Or can you you know, if you get some buddy letters that so if there's evidence that they think is missing, they have to tell you that the evidence is missing. And they'll also ask additional questions to kind of make sure that they have a really good understanding of the facts of the case. And so when they're asking questions, it's not to try to catch you in a lie or anything. It's really to help you, develop your case as best you can before the the veteran law judge.
Speaker 2:And then once the once kind of the hearing is over, they turn off the the recording of it, and they'll they'll let you know that, they're gonna submit the recording, and then it kinda goes back into the queue. It will get assigned to a likely to a different judge to make the decision. So the person that you just formed a relationship with that you, you know, you had eye contact with and they they understood your story, maybe you, like, lifted up your shirt and showed your scars in your stomach or, you know, what have you, that's not necessarily gonna be the person who, decides your case. So there'll be a transcript of the hearing that goes into the file. And then when that one kinda gets to the top of the queue or the front of the line, it'll get assigned to a new judge, and that judge will make a decision on your case.
Speaker 2:So that's why there's often about a year after the hearing before we get a decision in the case.
Speaker 1:So that makes sense. And and you mentioned something earlier that gave me another question, that I thought about. So do do veterans have to have an attorney to go, you know, bring their case to the VVA? And, you know, if if they don't do it themselves, you know, are there other types of legal practitioners, that can help them like VSOs? I don't know if we Great question.
Speaker 1:Practitioners, but they do help.
Speaker 2:Yeah. No. That that's a great question. You absolutely do not need to have an attorney or a VSO. You can just go in there.
Speaker 2:And like I said, the the veteran law judge is gonna be very accommodating, like, walk you through the process, and they're not gonna try to trip you up or or catch you in a lie. I mean, you don't wanna lie, but they're not looking to trip you up. They're looking to help you get your story on the record as as best you can. So you can go in there without a a representative. I typically advise people if depending on what's going on in the case, if somebody comes to us and they say, hey.
Speaker 2:I I filed a a board appeal and I'm about to have a hearing. Would you represent me now? I often will because I think that having that rep you've waited at you know, like I said, the hearing lane is often five plus years. So you've waited this long to get your your story in front of a judge. It's helpful to have a legal eye saying, okay.
Speaker 2:This is the evidence that VA thinks they're missing. These are the pieces we need to address. We need to kind of corner the judge into telling us what additional evidence they want to make a decision, and then we can help you develop that evidence. And if you go in there without that, you're kind of relying on the judge to to help you develop the the claim as best you can. And, you may miss stuff, and then you've just waited seven years.
Speaker 2:And you can still hire an attorney after you get a denial on a a board claim. But Mhmm. I I do think it's it's often beneficial to have somebody kinda help walk you through that. And it could be like you said, it could be an attorney. It can be an accredited claims agent or a VSO, as long as it's somebody that you're comfortable with and that really understands your your case or will take the time to understand your case.
Speaker 2:So we've had people come to us, and they're more often than than you would think probably, but it it's like they waited until a week before their hearing. And then they're like, oh, no. I really don't wanna go into this alone. Can I hire you? Well, it's gonna take us more than a week to get into their claim file and really understand what's going on in their claim, but that's okay.
Speaker 2:We can still take on the case, and we'll coordinate with the hearing coordinator to push the hearing back usually just about a month or so. And that'll give us enough time to get into the file, figure out what evidence is already in there, what stuff we might need to to develop, help prepare the veteran for it. So I I do like to spend a few hours with the veteran in the weeks and days leading up to the hearing just to make sure that they know what to expect, that they're comfortable with the types of questions I'm gonna ask, and they're not caught off guard by anything, and make it as comfortable for them as possible because I think that's the best way to, get your full story in front of the judge.
Speaker 1:So can you sort of talk about what some of the types of decisions veterans can expect, at the EVA hearing? Or, not a hearing, but a VA, you know, at the end state.
Speaker 2:What Yeah. Whether it's from a a direct review, a evidence development lane, or a hearing lane. So the best decisions that we get are full grants. And I'll I'll just take a second to talk about what that means because it's not totally as obvious as as it sounds. So obviously, full grant is when the board says, yep.
Speaker 2:Everything you're fighting for, we agree that we were wrong before, and we're gonna we're gonna grant entitlement to migraines at 50. Sure. Well, the board can't implement that rating. They they can issue it, but then it has to go back to the regional office and they're gonna be the ones that assign percentage, the effective date Mhmm. And calculate your back pay.
Speaker 2:And and so that there's usually about a week or two process in between of a full grant and the decision at the regional office that implements the grant and issues the back pay. So there is that kind of gap. And sometimes we'll see it looks like a full grant. Like VA says, yep. Entitlement to migraines is granted.
Speaker 2:And then it goes back to the regional office to implement it, and they'll implement it as a 0%, and then we're back to. So it looks like a full grant, but the way that the regional office implemented it Mhmm. Will require us to to file more appeals to get the correct rating level or to get the correct effective date. Sure. So full grant is is one option.
Speaker 2:Obviously, denial full denial is another option. And if there's a full denial, your options are to start over with a supplemental claim and add in more evidence. So maybe they denied because you don't have evidence of a diagnosed condition. You can file a supplemental claim within a year and enter that missing evidence, and VA will kind of start the process over, but you're still preserving your effective date. Sure.
Speaker 2:Because you're continuously pursuing it. You can also if there's and this is where you really do most likely wanna get a a an attorney involved if you haven't already. It's evaluating whether to take the the denial up to the court of appeals of veterans claims, CAVC, court of appeals of veterans claims. And they're not retrying the case at the court. It's it's really procedural errors in the board's decision that we're getting overturned.
Speaker 2:So understanding that kind of nuance of how, you know, did the board apply the right, standard of review or the right, standard of proof or or what have you, are kind of nuanced legal issues that, accredited claims agents can do it. But oftentimes, having an attorney really look at those issues is is critical to understanding your appeal rights. Then you can get a remand
Speaker 1:Mhmm.
Speaker 2:Is the third. And so a lot of times you take it all the way to the board. You've waited all these years. And then the board says, well, you know, we really need another C and P exam to figure out whether this condition might have been caused by toxic exposure risk activity or whether obesity as an intermediary factor is at play here. What whatever you know, they didn't fully develop everything.
Speaker 2:The board doesn't think that the regional office fully developed everything that they should have. They're gonna send it back to get more documents, get more exams or something. And then we've got partial so if you've got multiple claims, the board can grant some stuff and deny some stuff or grant some stuff, deny some stuff, and remand some stuff or kinda any combination there.
Speaker 1:So I know you also you've touched on this a little bit, but can you kinda talk about those different lanes and then the the different lanes? What do they mean, and then how long do those specific lanes generally take?
Speaker 2:Yeah. That's a a great question. So the most common one that we do is the direct review lane, and that's that's the one where I'm saying it takes about one to two years on average for a decision. And, excuse me, for that, you're not filing any additional evidence. You can file argument.
Speaker 2:So we usually write not just the one page. You only have to send in the one page form, the VA form one zero one eight two, but we usually send in argument with that that form. And that's it. They can't there's no hearing. They can't consider additional evidence.
Speaker 2:Then there's the evidence development lane, and you have ninety days from when you file the the claim to submit additional evidence. And, that could be additional medical reports, vocational expert reports, buddy letters, any any number of pieces of evidence. And so sometimes we'll do that if we just don't think the regional office is gonna get it, and we wanna, send it straight to the board for the board to consider the evidence in the first instance. Those ones, even though you have the ninety days, it typically adds more than ninety days to the wait time. They just put them on a different track, and they decide them at a slower rate.
Speaker 2:So I would say those, we're looking at probably another year on top of the one to two year time frame for VA to decide it. And then the hearing lane, with the hearing lane, you can, with the evidence development lane, just to be clear, I I want, you can board can only consider evidence that's submitted either with the appeal or within that ninety day period after the appeal. And so if you got a decision on your on your claim and then you upload evidence to the VA direct upload, and then you file your board appeal evidence, development lane, the board can't consider that evidence that's sent in between the decision and when you file your appeal. A lot of people don't realize that. They'll send in evidence and then wait for two to three years for the board to be like, well, there was evidence there, but we couldn't consider it.
Speaker 2:So I did wanna kinda clarify that.
Speaker 1:No. Somebody's got a hearing, and this might be a dumb question, but somebody if somebody requests a hearing, can they, like, pivot during that hearing and say we wanna do evidence? Like, can they pivot into the other lane and say we wanna do additional evidence submission over the next ninety days?
Speaker 2:That's yeah. That is so if they have the hearing, same thing. They can submit evidence with the hearing or within the ninety days after the hearing. But any evidence that they submitted while they were waiting for the hearing to come up, the board can't consider. So a lot of times the judge will tell us, you know, if you have even if you have, like, your VA medical records and they're already in the system, the the board judges will tell us, go ahead and reupload those after the hearing.
Speaker 2:But you can also waive the so if you select the hearing lane, this is the one hearing lane is probably three to five years, maybe even more, for a decision, three to five years probably for the the hearing to occur. But you can waive the hearing at any point and submit evidence within ninety days of waiving the hearing. So sometimes, strategically, we'll use the hearing lane. You know, we don't wanna waste the the board judge's time at all. So you never wanna stand up a judge or just not show up for your hearing or something like that.
Speaker 2:That would be, you know, with people waiting this long to do that, wouldn't be fair to your other veterans, and and it wouldn't be looked on very well by by the board. But if you let them know well enough in advance, there's really no harm to doing that, and it can kind of keep your appeal stream open if you're yeah. The the most common time that we use this would be if somebody's really working with their doctors to get medical evidence, but they need testing done, and they know it's gonna take a while to get that testing done. Or we've had veterans that are working overseas, and they know they're not gonna be available for C and P exams, and the VA process at the regional office just moves too quickly. And so they wanna kind of keep their appeal stream open, but stick a pin in it until they're able to focus on their claims again.
Speaker 2:And so we'll they'll file a hearing lane with the intention of once once they get back and they're able to focus on it and get the evidence they need, they'll withdraw the request for hearing and submit that evidence that they need within ninety days. We've had ones where, you know, if you're waiting for a discharge upgrade or something, that might be a good option. Or if you're expecting a law to change, you know, you might file that. And then if that law changes the way that you were hoping it to change, then then you can withdraw the hearing and submit evidence or submit argument at that point.
Speaker 1:So what kind of evidence do you think is matters the most at the VBA?
Speaker 2:That's a really good question. I mean, it's really the same evidence that matters the most at at the regional office, and it's depending on your case. And so VA assigns benefits based on based on something being service connected. And so did something happen in service? Do you have a current diagnosis?
Speaker 2:And is there proof that there's some connection or evidence that there's some connection between what happened in service and your current condition, whether directly or indirectly or or whatever. And so whatever VA is missing, that's the stuff that you wanna focus on at your hearing or or at the board. The board is supposed the board will look at it. They are not supposed to give any deference to the decisions of the regional office. They're supposed to reevaluate everything.
Speaker 2:They're gonna look at it and decide whether your statements are credible or not. So if you're contradicting yourself or if it looks like you wrote all of the lay statements for all of your friends and they just signed them. The board will be looking at at that kind of stuff. So you wanna make sure that it is credible. It appears credible.
Speaker 2:But you're looking at the evidence that VA is missing about what element is it. Did it happen in service? Do you have a diagnosis, and is it connected?
Speaker 1:So what kind of I mean, you've already touched on this a little bit, with the different with the evidence upload especially, but what kind of mistakes do you see commonly for folks that are trying to have their case, you know, reviewed at the BBA?
Speaker 2:So, yeah, definitely, those gaps where people, they uploaded stuff, but it was in the short window between the decision and when they filed their appeal and the board can't consider it. Those kind of things, they're frustrating for us. I think they're even frustrating for the board judges, but they're just by regulation, they're not allowed to consider that evidence. So that one is, it's one of the biggest mistakes that we see. I think the one of the other ones is people not understanding those three elements of service connection.
Speaker 2:And so they just sort of fixate on, you know, my headaches are really bad. I have headaches all the time. I have a diagnosis and VA's treating me for the headaches. I don't understand why they're not recognizing it and giving me benefits for it, but they they just haven't grasped the the need to get it service connected. And so if you go into that hearing or if you're appealing to the board and just explaining how bad your headaches are and you're missing that connection piece, you're you're gonna be spinning your wheels.
Speaker 2:So not understanding what VA is missing. And we see people, I guess it's not a fatal mistake, but it I think it frustrates stuff and makes the record more complicated. We'll see people upload the same information that they've already sent VA. Like, maybe if I upload this this Nexus letter six times, then VA will pay more attention to it. And that just makes your claim file thicker.
Speaker 2:It makes it harder to understand what what evidence is new and what evidence is repetitive, and, it makes it harder for the for the board judge to really evaluate the evidence in your record. So you if you have any doubt about whether something's uploaded, I think it's okay. You know, it's not the end of the world if there's duplicates uploaded, but you wanna avoid that if you can. You don't wanna be uploading the same stuff over and over again because it just makes your file thicker and more confusing.
Speaker 1:So do you have any I mean, we've covered a lot today, but do you have any, additional, like, tips or advice? And when I mean advice, I don't mean, like, legal advice, but just general advice for folks that are, preparing for BVA appearances.
Speaker 2:Take a deep breath. Get a good night's sleep before I mean, if you've already filed your your board appeal and you're getting ready to have a hearing at with a a board judge, Consider whether it's something that you're comfortable doing on your own. If you really understand your case well and you think you can make the case, the judge is gonna be there to help you draw out the important details in in your case. And so it may be something that you're comfortable moving forward with. But if you're not, don't feel like it's too late even if your hearing is next week.
Speaker 2:If you hire a good attorney, they can often get that hearing pushed back so we have time to prepare for it. So, if you're feeling overwhelmed by it, reach out to, an attorney or an accredited claims agent or or VSO if, if you have one that you think would would be able to help you with the board hearing.
Speaker 1:Sure. And, for you for those of you out there watching, if if you're not really sure where to start, or where to look, we've done some videos on this in the past, and va.gov has a really great search tool for an accreditation search tool where you can look for attorneys, BSOs, and accredited claims agents, and you can look for them in your local area. Not that you're required to use one in your local area. A lot of veterans don't know that, that they can, you know, hire an attorney like you, Rebecca, in Florida even if they live in California.
Speaker 2:Mhmm.
Speaker 1:And so, you know, there are tools out there. You might wanna consider asking the attorney, like, when you interview them and talk to them, how comfortable they are with this type of case, have they done them before. And Rebecca has Rebecca and I have done videos on this in the past too about, when you go to select who's gonna represent you. You wanna make sure it's a good fit for both of you guys. Right?
Speaker 2:Mhmm. Yeah. Different law firms and different representatives have different styles. You know, I know there's some clients out there that really wanna sit down at the table and have eye to eye contact with the person, and they're not comfortable doing stuff over the phone and doing stuff over Zoom. There's certain law firms that are set up to do that, and others are are more set up to help people nationwide and use a portal system and you know?
Speaker 2:So the how frequently you need communication, how many of these cases they've done. Every case is a little bit different. I mean, clients will sometimes say, well, you know, what are the statistics on this kind of case? And, well, your facts are even if it's the same kind of case, your facts are different than the last Sure. Case that we tried in, on these issues.
Speaker 2:But, yeah, you do want something someone who's comfortable with the types of issues that are present in your case. And, and you wanna feel comfortable with them. You wanna be able to ask them questions and ask their team questions and know that you're gonna get credible responses and not just get the runaround. So, it is important to choose someone that you're comfortable with.
Speaker 1:Sure. So, again, you guys out there that have been, hanging around this video and watching, I hope this was helpful to you guys. If you'd like to re reach out to Rebecca, her information on her website is gonna be in the info of this video. And, Rebecca, as always, thank you for joining us.
Speaker 2:Yeah. Thank you for having me, Leah. It was great seeing you.
Speaker 1:You too. And, you guys out there, please drop some comments. If have any questions or thoughts or just wanna share your experience, we'd we'd be, happy to hear them or or see your questions. And as always, thank you for watching. Alright.
Speaker 1:See you. Bye.