After you pass your self-administered mirror test or allow a representative to do so, you will be filing a Notice of Appeal (NOA). You must do it in 120 days. In spite of what the SCOTUS said in Henderson v. Shinseki, I would admonish you to just get it right in the first place. If you are going to attempt to do this yourself, you’ll find your mailbox plumb full of new law dog friends. That’s just standard procedure. You really don’t want to do this yourself, but if you do, you have to do it in a timely manner.

You have now graduated to my style of stationary. No more 21-4138s and Form 9s. You are now on official SF8.5X11 and will be from here on out. I would refrain from putting the Loony Tunes characters or Tickle Me Elmo stickers on your correspondence. Your decorum here is a given and humor is frowned upon. Everyone talks in hushed tones and bows when the Judges go by. Laughter is right out.

Your NOA must consist of a letter that contains your name, rank, airspeed and tail number so they can get back to you with correspondence. You will also need to include the BVA  decision number including your SSN or claims file number.

If you have a representative, your requirements increase but this will become their problem and not yours. All this is irrelevant as I said if you are not attempting to do this pro se (by yourself). An NOA does not have to be the Declaration of Independance and cover every conceivable angle like a Form 9. It is considered sufficient if it expresses, at a bare minimum, that you are unhappy with the parade and party the BVA threw for you down at Vermin Ave. NW.

Most importantly, you are going to need a plausible argument. Arriving at 625 Wagon Burner Lane NW with a basket of “They didn’t give me no respect” will  not prevail. This is called the “Case or Controversy” requirement. You have to have something that is grossly wrong with your denial. It has to be visible such that the Judges can see it when you do your show and tell. It isn’t required up front with NOA but filing without some easy to see egregious error is futile. A classic example of this was Mr. Wayne Theofrastou’s argument that the it behooved the vA to somehow go back and unearth lot and batch numbers for  inoculations he received in service. While the Court did not specifically mention a case or controversy argument here, it was in the wings. The nature of Wayne’s NOA concerned itself more with a CUE and we all know that is a slippery slope with very few perches.

Case or controversy also rears it’s ugly head when you die without finishing the claim. Vets tend to do that because it seems to take forever to get these things done. This is all the more reason why I suggest starting as early as possible. Here I am about 5-10 years from punching out and I’m just now getting to the Court. Baaaad idea. Here’s the death argument in a nutshell. Before 2007, they considered a claim for compensation to be different from a claim for accrued benefits. We all know what comp. is but few know if you died without collecting certain things, your spouse had to start all over from scratch at the VARO on the claim just to get anything-such as DIC, any monies still owing, etc.

If the Court found out you had completed the bucket list and moved on prior to finishing your CAVC claim, they vacated and went to lunch. In 2007 the Fed. Circus jumped in and decided to cut us some slack. Some, mind you. If your had finished the submission of the claim, phase two kicked in. That would be the decision of the Court. If they made their decision after you died and didn’t know about it, and if the case or controversy now has been satisfied and  if your spouse has standing (legal marriage etc.) , and if “considerations of justice and fairness” were satisfied, then and only then the Court will leave the decision intact.

In 2008, some of this was weeded out by Congress and a new dawn on claims began. No more did the spouse get hosed and end up with a burial flag and $250 to cremate you. In spite of their poor wording on the new statute (38 USC §5121A) which didn’t specifically encompass the Court, it is accepted wisdom that Congress intended this. Thus the Court follows this dictum-one of the rare times when it goes out on a limb and actually does something without a rule, regulation or statute to support it.

Next up will be the discussion on what happens when they ignore you at the VARO and don’t  do anything with your claim. Oddly, it happens all too frequently. This has resonance with me because it is one of the claims  I am fighting for. You are in a sticky wicket because you can’t appeal it to the BVA (or the Court). You are in judicial limbo and at the mercy of the Court to order the bozos to do it. The BVA won’t touch it without a final RO decision accompanied by a Form 9. Sometimes dynamite won’t produce results as many of you know. I appealed and the BVA simply mimeographed the VARO argument and pasted it onto my decision. The Court will now grab Uncle Eric by the collar and stick his nose in it. The question will be “Why did you do this? Defend your actions.”

 IN GOD WE TRUST

VETS PAY $50

NO EXCEPTIONS