Once you have been denied at the BVA, your have 120 days and nights to appeal your claim. This is done by sending it in to the Court. If you make the mistake of sending it to your RO or the BVA, it’s still salvageable. Equitable tolling applies if you send it to the wrong PO box. It used to be that this was granted based on the much-vaunted Thursday rule-i.e. if you mailed it on a Thursday, you got this dispensation. Now, after Bailey, we all get it.

Here’s another example of how not to do it. Our new Judge, Meg Bartley, is getting a lot of these in order to get her feet wet. Veteran Ronald A. Nagel has jumped the gun and mistakenly assumed he’s supposed to appeal his RO decision to the Court. It seems a few pro se Vets screw this up. Click here and then enter 12-1100 into the search bar. To make it easier to read, click on the download in the upper left of the page.

Even though it may seem elementary, you must have a denial from the BVA to appeal to the CAVC. But is that always true? “Not exactly” as they are wont to say down at Avis Rent A Car®. There is the much vaunted Extraordinary Writ, sometimes referred to as a Writ of Mandamus. You can count how many times this has been successful on one hand. But on the other hand, you will not believe how it engages the vA process and turns on the hyperdrive motivator. Vets who have been playing the board version of Lost in Space will finally get the double box cars on their dice role and find things moving forward rapidly.

I have discussed the ramifications of a Writ in prior posts, so I don’t need to drown you in more knowledge of same. I merely mention it as one of the tools at your disposal for energizing you pink bunny when the batteries run low. It may be your only recourse because we all know how intractable the vA can be, If (and when) you can get them to give you a denial or SOC on their failure to answer a NOD properly, you can appeal. When faced with a reopening and successful win, you often will get no satisfaction trying to extract the earlier effective date you are owed from them. Face it, vA is loathe to give away money unless its for Karaoke machines in Orlando or Patton lookalikes. This is the legal limbo I find my claim in personally. A filing in March 1994 followed by the standard denial in November. A NOD filed with new and material evidence to rebut and a promise of a new decision in my January 1995 SOC-then silence for years until my refiling in 2007. Oddly, there is no mention of any new evidence throughout the following four years of DRO reviews and appeals. Just an incessant drum roll of “No way, dude”. As many times as I have brought up 38 CFR § 19.37 and VAOPGCPREC 9-97, they have artfully dodged that premise and said no new evidence was submitted. They cling to this and refuse to entertain the idea they may be in error. They continued this yesterday at my Rule 33 briefing up at the Court. As we all know, ignoring something usually magnifies it later down the road. Not so the vA. They will blithely deny the truth right up to the day they arrive at the Courthouse and then suddenly have their epiphany. I suspect that is what will happen to me.

The denial at the BVA brings up another legal ploy. You also have 120 days to employ a Motion for Reconsideration  request to the BVA. It used to be that if you failed to file this at the right desk then you were doomed. vA will now (probably under protest ) acquiesce and grant a motion to “look” at it. Unless you have some extraordinary new and material evidence or some official service department records that are pertinent and would be instrumental in overturning the bogus BVA decision, you claim will be relegated to the circular file. Once informed of this, you again have only 120 days to get your appeal into the CAVC.

In the event your Motion for Reconsideration is granted, it will be heard by an expanded panel of Veterans Law Judges (VLJs). This is done in increments of two judges. Thus, if a single judge heard your case last year, a Motion for Reconsideration would expand it by two to three. It is important to have an odd number to avoid the eventuality of a tie vote-i.e. one judge for and one against- as if that’s ever going to happen. A Motion for Reconsideration can be submitted at any time after a BVA denial. For example, I was denied in 1992 by a three judge panel with one judge AWOL. They both decided against me. If I had so desired, I could have petitioned for a Motion now in 2012. On the off chance that they had granted, they would have had to use five judges. I decided to go for a CUE filing on the 1992 miscarriage and lost. That is now before the Court.

Some less than knowledgeable Vets may make the error of filing shotgun-style with both a MFR to the Board and one to the CAVC mistakenly believing they are playing CYA. This is a wasted effort. The Court will simply dismiss your filing as untimely as it conflicts with the Motion you are filing at the Board. That is waste of $50.00 that would be better spent on 12 gallons of regular for going to and fro from the post office.

Oddly, you can keep filing Motions for Reconsideration with the Board again and again as many times as you wish and still protect your eventual right to appeal to the Court. How comforting to know that Vets can make this a lifetime endeavour if they haven’t already.

Giving credit where credit is due, all of this information is available to Vets in the Lexis Nexis edition of the Veterans Benefits Manual (VBM). While it is rather expensive for Joe Blow Vet to purchase, it is often the bible needed to understand why vA is giving you wallpaper for your denial wailing wall. It is also axiomatic that it will have the obverse effect if you possess it. Since most do not have a spare $250 lying around, I don’t mind picking through my donated copy and enlightening my fellow Vets. If only one of you were to win this year using something I published, then I feel vindicated. The fact that over ten of you have somehow beaten all the odds is immensely encouraging.

The next CAVC installment will continue to explore what vA  rarely tells you about. It’s not a secret but if you do not know, it might as well be.

WE WILL DECIDE NO

CLAIM IF WE CAN

REMAND IT