Client Win: CAVC #18-6857, Jordan v. Wilkie (Ask for BVA hearings, get BVA hearings)
This case involves a veteran's right to BVA hearings. For years, the VA and BVA have wanted to limit veterans' ability to get a BVA hearing.
Here's how the BVA does this.
The BVA remands a case on an appeal, tells the VA to get more evidence (typically adverse evidence) and the VA packs the file with adverse opinions, etc. When the veteran asks for a BVA hearing to review that evidence, the BVA wags its finger and says "No more BVA hearings. Only one hearing. Ever. But thanks for your service."
The Federal Circuit, in 2018, found that the BVA was wrong to deny a veteran's request for a BVA hearing. This is particularly going to be true when the Secretary stacks the deck and adds negative evidence to the veteran's file.
ISSUE ON APPEAL TO THE CAVC: A Right to BVA Hearings.
Congress required that “[t]he Board shall decide any appeal only after affording the appellant an opportunity for a hearing.” 38 U.S.C. §7107(b). The Federal Circuit has interpreted Section 7107(b) and determined that the “[BVA] is not free to curate which appeals are entitled to “an opportunity for a hearing.” Cook v. Wilkie. (You can read about this precedential decision in Cook v. Wilkie by clicking here.
In this case, the Board of Veterans Appeals held a hearing on April 21, 2017, remanding the issues before it to the Regional Office for further development and readjudication. After that remand, the Secretary added two adverse C&P opinions and a Supplemental Statement of the Case (SSOC). The veteran requested a hearing in his VA Form 9.
Did the BVA err when it denied a BVA hearings request on the grounds that “[t]he law does not require that the Veteran be afforded a second hearing request merely because he requests one. Rather, he must demonstrate good cause.”
RESOLUTION AT THE CAVC.
The VA Secretary, through his attorneys at the Office of General Counsel (OGC), agreed that the BVA erred.
There is NO good cause requirement to get a hearing before the BVA under the legacy appeals system. If you ask for a BVA hearing, you get one. It's that simple
Even though this BVA decision denying the veteran's Board hearing request was issued before the Court issued its precedential decision in Cook v. Wilkie, the BVA still erred. When the Court interprets a statute like 38 U.S.C. 7107(b) BVA hearing requirement, it is not writing NEW law, but rather explaining what the law has always been.
The Board continues to violate this law, suggesting that the CAVC's orders are not a high priority for the BVA, or that there is a systemic flaw in the BVA training system in which BVA hearing officers are not able to learn about new law.
If you requested a BVA hearing and were denied one, click here to have Attig | Steel take a look at your case.
OGC Attorney: Clifton A. Prince (link to cases involving attorney at AttigSteel.com)
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: Alexandra P. Simpson (link to BVA attorney bio at FederalPay.org)
Vets’ Rep at BVA: Carol Ponton, Attorney (link to bio at Hill & Ponton website)
Date of BVA Decision: August 27, 2018
Date of CAVC Joint Motion to Remand: December 12, 2019