Lawyer Representation before the Court of Appeals for Veterans CAVC
Recent statistics show that only 17% to 28% of cases are approved at the Board of Veterans’ Appeals (BVA). Fortunately, the U.S. Court of Appeals for Veterans’ Claims (CAVC) reverses the majority of the adverse BVA decisions. Between 1995 -2006, the CAVC heard 18,000 cases in which the claimants had been denied benefits at the BVA level. In almost 80% of the cases, the CAVC either reversed the BVA decision or remanded it for re-adjudication, finding at least one legal error in the BVA decisions. Thus, it is essential that the veteran consider from the outset whether his claim can be heard by the CAVC. Only members of the CAVC Bar can represent Claimants before the Court. Consider this carefully when choosing a veteran appeals lawyer.
The CAVC will not accept new evidence; only information previously provided to the Regional Office (RO) or to the BVA. Thus, hiring an attorney early on can ensure that all relevant evidence is properly presented and that all legal arguments are raised before an appeal is submitted. Volunteer layperson advocates have diligently and compassionately represented veterans for decades. However, their lack of legal education and their large caseload significantly limit their otherwise commendable and dedicated service
In June 2007, Congress, in response to demands from veterans who were frustrated with the prospect of navigating the complex bureaucracy without an attorney, approved attorney involvement in representing claimants before the VA. The law now allows attorneys to represent claimants before the VA and to charge a reasonable fee. The law defines a reasonable fee to be 20% of the past-due benefits which the VA pays directly to the attorney.
Why are so many veteran disability claims denied by the regional office?
The Institute of Medicine (IOM) was asked by the Veterans’ Disability Benefits Commission to study and recommend improvements in the medical evaluation and rating of veterans for the benefits provided by the Department of Veterans Affairs (VA) to compensate for illnesses or injuries incurred in or aggravated by military service. The IOM noted inadequacy of the raters employed by the VA:
“Few raters have medical backgrounds. They are required to review and assess medical evidence provided by treating physicians and VHA examining physicians and determine percentage of disability, but VBA does not have medical consultants or advisers to support the raters. Medical advisers would also improve the process of deciding what medical examinations and tests are needed to sufficiently prepare a case for rating.”
The Inspector General reported that 24 percent (95,000 of 405,000) of the C&P examinations had been incomplete in FY 1993, a percentage that had not improved much in FY 1996, when 22 percent were incomplete (VA, 1997b). The IOM also found, for example, that of the spine exams requested during the second quarter of fiscal year 2005, 32 percent of the exam requests had at least one error such as:
•not identifying the pertinent condition;
•not requesting the appropriate exam.
What is the difference between the Regional Office and the CAVC?
The rating system has evolved over many decades, and as the IOM study has shown, it is largely out of date with modern medicine. I invite you to visit on this website the pages that deal with back, knee, and sleep apnea and see how courts have interpreted the incomplete and ambiguous terms of the rating table. Regrettably, the regional office operates under a manual that has not been updated for years and has not always incorporated the decisions made by the court. The BVA and the court are staffed by experienced lawyers and judges well-versed in the legal decisions which should guide the correct interpretation of the rating table. In contrast, the regional office is staffed by well-meaning, but not similarly educated regional officers, who base their decisions on the “Manual” ignoring the large body of law that has evolved over decades of Court’s experience.
Why should I file an appeal with the Court?
The design of the veteran disability system is heavily tilted towards awarding benefits to veterans. While all civil litigations require that the plaintiff prove by at least the preponderance of the evidence that he should prevail, a veteran simply needs to show that it is as likely as not, or a 50% chance that the evidence presented supports his claim. If the veteran’s expert states that the evidence supports Veteran’s claim while the Veterans Administration’s expert states that it does not, under the benefit of the doubt, the BVA must hold for the veteran. Over the years, the regional office has approved only 17% of the cases, while the Court of Appeals has remanded 86% of the denials. Looking at the statistics it is quite clear that the regional office generally does not apply the rules correctly. When a case is remanded to the BVA, the court provides the BVA with specific instructions on how to interpret the evidence before it, and forces the BVA to make the correct decision, usually in favor of the veteran.
How do I file an appeal with the Court?
The law requires that a veteran file a notice of claim with the Court of Appeals within 120 days from the receipt of the denial of claim by the BVA. After 120 days the veteran can no longer appeal his case and his only recourse is to start all over again at the regional office, with an expected five years additional delay in the processing of his claim, and the loss of his initial effective date. Thus, it is essential that the veteran contact a lawyer who is a member of the CAVC Bar to consult regarding filing an appeal with the CAVC.
How much does the Veteran Appeals Lawyer charge for his services?
If I represent you before the CAVC, I will not charge you a fee. Under federal law – EAJA, if the court remands a case back to the BVA, as it does in 86% of the cases, the government, not the veteran is responsible for the attorney’s fees. If our case is remanded and the BVA awards you the benefits I will substract the amount paid to me by EAJA from the 20% I am entitled to receive from you. If I do not win the case you owe me nothing.
How can I help you?
I am an attorney specializing in disability law and also a board certified surgeon (transplant surgery) still licensed to practice medicine. I am also most proud of being a combat veteran. In 1973, I served in the Israeli Seventh Brigade (armored) during the Yom Kippur war. After representing more than 3000 claimants before the Social Security Administration and winning numerous appeals at the Federal Court, I have restricted my practice to the representation of veterans. I am passionate about defending veterans’ rights and firmly believe that my medical career gives me a great advantage in understanding and challenging faulty medical rating decisions. As an attorney admitted to practice before the U.S. Court of Appeals for Veterans Claims, I am committed to understanding the very complex legal rules and decisions involved.
Cases won before the Court of Appeal: