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So you’ve battled the VA for years, possibly decades.

You diligently filed a claim, but were still denied.  So you appealed and had your DRO Hearing.

You lost there, too.

So you filed the VA Form 9 in response to the Statement of the Case and you had your BVA Hearing.

The Judge at the Board shot you down, too.

But you’re resilient – you’re not giving up yet and believe that you are entitled to your VA Benefits for the disability that resulted from your injury – or injuries – in service.

So you appeal to the Veterans Court – also known as the “CAVC” or the  Court of Appeals for Veterans Claims (CAVC).

Sounds like a tough road?  It’s a road that THOUSANDS of Veterans travel every year – this claim and appeal process is byzantine.

(Fortunately, the VA no longer requires wax seals with your family crest to process your claim).

When you get to the CAVC, one of the  first orders you’ll receive is a Court Order to the VA to produce the Record Before the Agency (RBA).

What on Earth is the RBA?

Every step of the way, there are new terms and jargon to learn.

This can be  a challenge when it comes to the Veterans Court – like any appeals court, it is a chance for attorneys and judges alike to flaunt their command of $100 Lawyer Words like whenceforth, wheretofore, “cometh now”, “pray that such relief be bestowed on yon subjects of the realm”….

…okay, I exaggerate a bit.

But appeals courts are steeped in medieval and byzantine traditions and rules.  I once had a Court reject my appeal brief because I used the wrong “hue” of blue on the cover page.

I shit you not.

The wrong color blue was the barrier between justice and my client.  Reminds me of this movie:

Anyway, I digress….one of the reasons to bring in a professional VA Benefits Lawyer – unless you are the type that likes to learn and then do-it-yourself, which is a perfectly fine route to take, too.

For those of you who are do-it-yourselfers….or who just want to understand what your attorney is talking about (sorry folks, most VSOs won’t go to the Veterans Court with you),….let’s talk about this new acronym.

The RBA is the “Record Before the Agency”.

In theory, the RBA is all of the information that was before the Board of Veterans Appeals (BVA) Judge when your claim was decided.

In reality, there is no telling what’s in there.

Sometimes the VA will “lose” important documents from the C-File before it goes to the Court of Appeals for Veterans Claims (CAVC).

Sometimes new documents will find their way into the file.   (I’ve seen RBA files that had more than 300 new pages added after the Board of Veterans Appeals (BVA) decided the case).

All the time, though, you should EXHAUSTIVELY study this document.  If you are going to get anywhere at the Veterans Court, it is by knowing what is in – and what should have been in – the RBA.

And you’ve only got a limited amount of time to study it.

How do you know if the RBA filed by the OGC is correct and complete?  

There are two ways to go about this – the thorough way, and the risky way.

The thorough way is to request a copy of your C-File (Claims File)  –  IMMEDIATELY AFTER the Board of Veterans Appeals (BVA) hearing, but before the Board of Veterans Appeals (BVA) decision.

You would then compare this file to the RBA file page by page – it’s tedious, I’m here to tell you.

It is my Firm’s policy to thoroughly compare our copy of the C-File to the RBA – page by page – while tedious, it’s the only way to be sure that you aren’t getting shilled by the OGC.

The risky way is to look through the RBA to make sure that all of the documents you need to make your argument in your Court of Appeals for Veterans Claims (CAVC) Appeal brief are there.  I don’t like this method – often times, I can’t identify each and every document I’m going to use in my briefs until I am done with the brief.

The risky way creates far too much anxiety for the pro-se appellant, and is unwise for any attorney representing a Veteran.

Bottom line:  when you get the RBA disc from the VA Attorney – look through it and make sure that it is the complete file that the Board of Veterans Appeals (BVA) looked at when it made its decision; nothing more, and nothing less.

You Have a Short Time to Dispute the RBA.

Also known as “counter-designating the record” in appeals court jargon, the Veteran (or their VA Benefits Lawyer) will have a chance to review and dispute or counter-designate the RBA that the VA OGC has prepared.

Problem is, it’s a real short window: 14 days from the date that the RBA was served – i.e., the date that the OGC claims to have put it in the mail (plus 5 calendar days for the time spent in the mail).

On average, the Attig Law Firm gets the RBA  11 days after it is served.  This gives us only a short window of time to study the RBA and dispute and/or counter-designate it.

To dispute the RBA – or counter-designate the record – check out the CAVC Rules, specifically Court of Appeals for Veterans Claims Rule 10.

Once the VA Office of General Counsel Attorney that is defending the BVA decision produces the RBA (usually, it’s on a CD-R in PDF format) to you, you will have 14 days to look it over.

If there is something missing – or something that shouldn’t be in there – you will have to let the Court of Appeals for Veterans Claims (CAVC) know by Counter-Designating the Record.

 

What if you Don’t Have Time to Review the RBA?

Or worse, what if you haven’t requested and received your C-File before you get the RBA?

(Remember, you are going to want to compare the RBA and the C-File – everything that is in the C-File SHOULD be in the RBA…especially if it is favorable to your claim).

Ask for an extension of time.  How much time?  Well, one option is to get on the horn to the FOIA office at the VA Regional Office and see how long until they produce your C-File to you.  Add 14 days to that date, and seek an extension based on those facts.

Problem is, if you trust a VA FOIA officer to deliver a C-File in a certain time, you are putting a lot of trust where trust has yet to be earned.

Here’s another option.  Ask the Court to give you 14 days to file your RBA dispute – starting from the date that you receive your C-File from the VA Regional Office.

What Happens Next?

This depends on whether or not you dispute the RBA.

If you dispute the RBA, then the case is put “on hold” until the dispute over the record is resolved.

Why? Here’s what one Veterans Court attorney – whose anonymity I am going to protect – told me when I asked the same question:

“Our concern is that the record is complete before moving the case forward.  If the case moves to briefing, it usually happens directly after the [Rule 33] conference.  We want a complete record at that point.”

If you don’t dispute the RBA, then the next step is to prepare for the Rule 33 Brief and Conference – the subject of another blog post.

As to the RBA…once all disputes are resolved over its make-up, it is set aside until the parties file their Appeal Briefs. At that point, the documents that you refer to in the brief – or, rather,  cite to you in your Table of Contents – will be clipped out and sent to the Judge (or panel) making the decision.

It’s a little known fact that the Judge at the Court of Appeals for Veterans Claims does NOT see your entire file – only those documents that you or the VA OGC reference in their briefs.

This is one of the reasons that change in the VA Claims Process is SOOO slow at the Veterans Court – most of the Judges have never seen the absolute mess that the VA calls a C-File.

Fewer judges have seen how long and hard it is for the Veteran or Survivor to get a copy of their C-File.

Where Can You Get YOUR C-File?

Even though this is the most important document in your VA Claim or Appeal, the VA doesn’t give the C-File up without a fight.  I’ve written an entire eBook – one of the most popular eBooks in the Veterans Law Bookstore – on how to use the Freedom of Information Act (aka, the FOIA) to get your C-File.

Learn more here.

And if you have any questions about the RBA  that I didn’t cover, post them in the comments section, and I’ll do my best to get you answers.

 

* This post initially appeared on the Veterans Law Blog on October 31, 2012.  It has been updated with more current information.

2 Comments

  1. ANDREW HARWOOD

    I’VE BEEN RATHER FOOLISH THINKING THE VA WOULD BE MY FRIEND AND BE FAIR AND BALANCED! STILL ALIVE FROM AGENT ORANGE EXPOSURE, BUT AT 67 THINKS ARE STARTING TO HEAD DOWN HILL!

    Reply
    • Chris Attig

      Andrew,

      Thanks for sharing your experience….I tell folks the same thing about the VA that criminal lawyers tell their clients about the police: They may be friendly, but they may not be your friend.

      The best thing you can do is know how to file a VA Claim, the road map to get out of the VA Hamster Wheel, and continue to keep learning about the VA Claims Process!

      Chris

      Reply

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