Caring. Effective. Efficient.

BVA Mischaracterized Appeal as Claim to Reopen

BVA Mischaracterized Appeal as Claim to Reopen

The BVA decision in this case mischaracterized the veteran's traditional appeal as a claim to reopen.  The BVA Judge  found that the veteran's  service connection claim for his left ankle disorder and bilateral pes planus were not reopened because new and material evidence had not been received to reopen the claims.

The problem with the decision was that the procedural posture of the case had nothing to do with reopened claims. This case is an example of a common problem with the BVA - they simply don't look at the claim to understand its procedural posture.  Here's the actual procedural posture of the veteran's claim:

July 2013: VA Rating Decision denying bilateral pes planus and left ankle condition claims.

December 3, 2013: Veteran disagrees with the VA Rating Decision and asks for an immediate appeal due to financial hardship.

July 2014: VA Rating Decision confirmed and continued the denial, but decided to call the claims "reconsideration claims", whatever that is (no such procedure or nomenclature exists in the VA appeals process).

September 2014: Veteran filed a Notice of Disagreement to the July 2014 VA Rating Decision

VA certified the appeal to the BVA, and BVA Remanded to issue a Statement of Case (SOC)

September 2015: SOC was issued, but did not characterize the claim as a claim to reopen

February 2016: BVA denies "claim to reopen" on grounds that there was not new and material evidence to reopen the claim.

The remand order in this case directs the BVA to readjudicate the appeal as what it is - an appeal of a July 2013 VA Ratings Decision - rather than what the BVA pretended it is (a claim to reopen).

Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have  Attig | Steel take a look at your case.

Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

OGC Attorney: Abigail J. Schopick

Veteran Representation at CAVC: Chris Attig (link to bio)

Board of Veterans Appeals Veterans Law Judge: S.L. Kennedy

Regional Office: Pittsburgh, Pennsylvania VA Regional Office

Vets’ Rep at BVA: American Legion 

Date of BVA Decision: May 6, 2016

Date of CAVC Judgment on Remand: February 24, 2017

Recent Cases

(April 18, 2018) The law firm of Hill and Ponton approached Attig | Steel after the BVA judge denied their veteran a higher 70 percent PTSD rating. They had put a lot of work and energy into helping a veteran, and the BVA decision seemed to gloss ove… Read More
(April 6, 2018) The veteran in this case served in the Navy in support of Operation Iraqi Freedom, including deployment to Kuwait. Upon his return stateside, after attempts to reintegrate to civilian life, he began to have family and other problems.… Read More
(February 14, 2018) Attorney Chris Attig has been working with this veteran’s survivor for half a decade to get her DIC and survivor’s accrued benefits properly awarded.  The veteran was a 3 decade military veteran, who fought not only i… Read More

See More Appellate Results

VA Form 21 Blog

Nov
26
Today’s video starts off with an overview of a recent precedential decision of the U.S. Court of Appeals for Veterans Claims in the case of Moody v. Wilkie, Cause No. 16-1707. Click here to read the CAVC’s panel decision in Moody v. Wi… Read More
Nov
15
What is the Deep Issue in the Case? 38 U.S.C. §7107(b) (2012) requires “[t]he Board shall decide any appeal only after affording the appellant an opportunity for a hearing.”  On remand from the Veterans Court, the veteran asked for a new BVA he… Read More

Read the VA Form 21 Blog