Caring. Effective. Efficient.

Client Win: Cause No. 18-6857, Jordan v. Wilkie (Ask for BVA hearings, get BVA hearings)

Client Win: Cause No. 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.

Case Details

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

Link to BVA Decision

Link to Joint Motion to Remand

 

Recent Cases

This case involves the application of a duplicitous legal standard by the BVA to a veteran’s TDIU appeal, in what is called a “reasons and bases” error by the Board of Veterans Appeals. While it favored a VA C&P medical opinion… Read More
This case involves several issues but centered around two: the veteran’s entitlement to increased TBI (Traumatic-Brain-Injury) and migraine ratings.  ISSUE ON APPEAL TO THE CAVC (TBI & Migraine Ratings). The veteran in this case was in a c… Read More
ISSUE ON APPEAL TO THE CAVC: PTSD rating higher than 50-percent. The veteran appealed to the Board of Veterans Appeals (BVA) seeking a PTSD rating higher than 50-percent. The VA had performed a VA C&P examination and opinion in January 2019. Rely… Read More

See More Appellate Results

Taking Point! Blog

Oct
20
Racist Ideas, Attitudes, and Behavior On March 1, 2016, the Department of Veterans Affairs (VA) announced it proposed disciplinary action against three Board of Veterans’ Appeals (BVA) attorneys and two judges who had repeatedly sent racist… Read More
Sep
1
By: Yalitza Ledgister, writing for “The Bridge” One day my son came home from school and, pointing to his brown arms, asked, “Mom, why can’t I have white skin?”  After the initial shock and parent-fail slap wore off, I… Read More
Jul
24
Even as protestors march across bridges across the nation, from the Brooklyn Bridge to the Golden Gate, history teaches us that America is resistant to acknowledging the persistent racism that plagues this country and even worse, resistant to do… Read More
Jun
26
“I am a Black man who jogs” was written by Augustus Turner, Mr. Turner retains all copyright to the image and content; it is republished here with his permission. Augustus Turner is a husband, a father, a soldier, and an attorney.… Read More

Read the "Taking Point!" Blog