Joseph M. Bochicchio, PLLC » Help with appeals

Help With Appeals

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Help With Appeals

Joe Bochicchio

Most Veterans aren’t advised that their appeal to the Board of Veteran’s Appeals (BVA)is likely their “last bite” at the apple under the new law, which funnels the vast majority of cases to the BVA for final decision.  The key word here is “final”, as the new law prevents countless appeals on the same claims from being heard again in an effort to reduce backlog.  The process begins with the filing of form 10182, and the “appeals lane” that is chosen.  The form seems simple enough, but danger lurks below the surface—choosing the wrong appeals option can have a serious impact on the success of your case.  Rarely do we choose the “direct review” option, which does not allow for the submission of additional evidence in your case, since the vast majority of cases lacked the appropriate evidence from the start.

Many Veterans file appeals to the BVA themselves (by filing form 10182 Notice Of Disagreement), or through a representative and don’t remedy the reasons for denial and/or lack of evidence.    They rest on evidence that has already been filed, which, in many cases, was scant to begin with and was not adequate to “connect all the dots”.  The Veteran’s worst nightmare comes true when they attend the hearing, and still don’t have the necessary evidence, let alone the proper legal argument to win their case, and received yet another denial after a long wait for their hearing.

What your representative should be doing is working with you during the entire time your case is waiting to be heard, and to guide you in developing the additional evidence during the course of your wait period, becoming intimately familiar with every aspect of the evidence and legal argument to be made in your case.  The constant communication gives us familiarity with your diagnoses and other evidence, the in-service event or events that have caused your injury, and have not only thoroughly reviewed, but directed our clients to go to doctors we have vetted to provide expert medical opinions for many months prior to the Board of Veterans Appeals hearing date.  The hearing, as I like to say, is the big show.  What is most important about the “big show” is all of the months of preparation that go into it—the intensive preparations and details that are executed behind the scenes that ends up in flawless performance.  The hearings generally last between 20 minutes and one hour, so it is critical to cover all the important points and to have concise, well-prepared arguments and evidence and to make effective, well-honed argument before the judge.  In short, we hunt with a rifle.. not a shotgun.  We are looking for pinpoint accuracy—not throwing a “kitchen sink” worth of evidence and argument up against the proverbial wall, hoping something sticks.

It is IMPERITIVE to have an experienced, accredited attorney review your file and develop a strategy for your case AS SOON AS POSSIBLE in the appeals process.  This often requires obtaining additional evidence, and filling gaps in the evidence that was submitted with the claim that got denied.  Some of this evidence takes quite some time to develop to ensure the best of all possible odds of winning your case in front of the BVA judge, so it’s important that you contact a qualified representative as soon as possible—especially in cases where your BVA appeal has already been filed.

The additional evidence can involve lay statements (i.e. “buddy” statements) , additional medical evidence, photographic evidence, and solid legal argument that connects all the dots and turns your denied claim into one that the judge can grant benefits for. It’s having the right kind of evidence, combined with good legal argument that leads to successful outcome of your case.

At our firm, we develop a comprehensive strategy to assist our clients in gather all the necessary evidence, and to “preempt” what the judge will be looking for in order to maximize the chances of a grant of benefits.  This strategy development and execution of that strategy doesn’t happen overnight, and cannot afford to wait until the last minute, so it is exceedingly important to evaluate the weaknesses in your case and why it was denied to begin with, and to connect all the dots early on so that we are ready for hearing long before the hearing date ever comes.

Why do Veteran’s lose their case at the BVA level?  Often times, it’s for the same reasons that they lost the case at the Regional Office level when they first applied.  It therefore makes zero sense to wander into a case going before a judge, and not be any further along filling all the holes and having developed sound legal argument before appearing at the hearing.  It’s the old adage about doing the same things, yet expecting a different result being the definition of “insanity”.

The fact of the matter is that your BVA hearing serves only two distinct purposes:

  1. To get any personal testimony as to facts surrounding/supporting/corroborating your

Injuries or disease, and why it was caused by your active duty career (i.e. “nexus”);

  1. To make legal argument as to errors in fact or law that caused the VA to deny your claim to begin with.

Other evidence, such as buddy statements, your own personal (written) statement, photographic evidence, nexus letters, stressors (for PTSD), and competent medical evidence should have already been procured long before your hearing, so they can be identified and cited as exhibits that corroborate both your current diagnosis, as well as the fact that your injury or disease were PROXIMATELY CAUSED by or during your active duty military career.

If your case involves getting secondary conditions service-connected, as is often the case, the medical evidence is even more critical to win your case on appeal.

Our firm provides FREE, NO OBLIGATION consultations on your case.  Our Veteran clients comment continuously on the fact that “we ask questions that no one else has ever asked them”, and it becomes obvious that our years of experience in handling Board of Veteran’s Appeals cases as to the best strategy for their case.

CALL US TODAY for a free evaluation of your case, and you’ll soon discover that we are, in fact, different than what you may be accustomed to.  You have nothing to lose, and everything to gain.