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Board of Veterans Appeals Docket

Has your VSO – or some other advocate or VA employee – told you that you shouldn’t appeal a bad VA Ratings Decision because it takes forever for your appeal to be heard on the Board of Veterans Appeals Docket?  This is rarely the truth – I have found that in certain specific situations, the only reason an appeal of a VA Ratings Decision to the Board of Veterans Appeals takes a long time is because the advocate did not know how to use some basic tools available to them.

Now, to be sure, not every appeal can be accelerated through the VA Appeals system.  And in those situations where an appeal cannot be accelerated, the BVA can really drag its heels on writing BVA Decisions.

But there are MANY scenarios where an appeal can be moved at something approaching light speed (at least “light speed” when compared to the average case on the Board of Veterans Appeals Docket).

One scenario where a Veteran’s Appeal might be accelerated is through the “Motion to Advance a Claimant’s Appeal on the Board of Veterans Appeals Docket”.

Let’s talk about that scenario now.

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What are the Elements of a Motion to Advance on the Board of Veterans Appeals Docket?

Well, this really depends on where you look.

As with all things VA and BVA, the process is often a riddle, wrapped in an enigma, hiding somewhere in the bowels of the St. Petersburg VA Regional Office.

Point is, nothing can be clear with the VA Benefits Process, and the Motion to Advance on the BVA Docket is no different.

So let’s look at all the sources:

38 U.S.C. § 7107

The United States Code is the law of the land – voted into law by both houses of Congress, and signed off by the President.  38 U.S.C. § 7107 gives us the following elements for advancing your appeal on the Board of Veterans Appeals Docket:

“(1) for cause shown…[but]…. Such a motion may be granted only—

(A) if the case involves interpretation of law of general application affecting other claims;
(B) if the appellant is seriously ill or is under severe financial hardship; or
(C) for other sufficient cause shown.
Noteworthy is the phrase “cause shown”.
There’s a legal term of art called  “for good cause shown”.
It’s basically a catch phrase that allows the Courts (a Federal or State Judicial Court, or a legislative Court like the Veterans Court) to decide things based on their discretion of what’s reasonable or not.
This is important because the legal standard for over-ruling a Judge – whether a Judicial Branch Judge or a Legislative Court Judge like the Veterans Court – must rise to the level of an arbitrary, capricious or otherwise unreasonable departure from precedent and settled judicial custom.
But that’s not the phrase used in this statute: the statute uses “for cause shown”.
That’s a wee bit broader – broad enough, in fact,  to drive a truck through.
So, according to 38 USC § 7107, if you make a convincing argument that there is reason to advance your case, it should be granted…although if you show that you are seriously ill or under severe financial hardship, or have a case with a general interpretation of law affecting other claims, you’ve met the “cause shown” standard.
Clear as mud?
It gets better.

38 C.F.R. § 20.900

The CFR is the Code of Federal Regulations – anything that appears in the CFR is by definition a Federal Executive Agency’s interpretation of the United States Code, and is issued pursuant to an Executive Branch Agency’s rule-making authority.

Here’s how the CFR reflects the VA interpretation of 38 USC §7107 at 38 C.F.R. § 2.900(c)(1):

“A case may be advanced on the docket on the motion of the Chairman, the Vice Chairman, a party to the case before the Board, or such party’s representative. Such a motion may be granted only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. “Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case or the advanced age of the appellant. For purposes of this Rule, “advanced age” is defined as 75 or more years of age. This paragraph does not require the Board to advance a case on the docket in the absence of a motion of a party to the case or the party’s representative.”

The CFR includes the basic statutory requirements discussed in the section above, but goes on to include an indication that “other sufficient cause” includes (but isn’t limited to) 2 key scenarios:

Scenario 1: Where Administrative Error resulting in a significant delay in docketing the case

Scenario 2: The Appellant’s Advanced Age (defined in the regulation as age 75 or older).

As for Scenario 1, what this means is very much open to interpretation.

Until more Veterans start ASKING for advancement on the BVA docket due to administrative error and delay – and challenging denials of the requests before the BVA, the CAVC and ultimately the Federal Circuit Court of Appeals, no real body of interpretative law will ever develop.

So make the request.

Lay out your best case of administrative delay – and if denied, include it as a basis of your Substantive Appeal before the BVA, and as part of your appeal to the CAVC if denied substantive relief at the BVA.

As for Scenario 2, I can tell you that while a Veteran over the age of 75 will almost always see their Motion to Advance on the BVA docket granted, many times we are able to get expedited handling of the BVA certification at the VA Regional Office when the Veteran is over the age of 70, particularly when we argue average life expectancy rates in the US for Veterans over the age of 70.

I will also say that, as a practical matter, MOST VA Regional Offices suggest that survivors over the age of 75 are not entitled to the same expedited relief…and one BVA administrative employee once laughed at us (literally) when we suggested that §20.900 applies to survivor appeals as well.

Mockery, put-downs, anger, and impatience from BVA Hearing Officials is an increasingly common occurrence – and rarely appropriate – particularly in light of the byzantine process for appeals before that Board.

It’s often easier to understand the role derivatives played in the recent US Recession than it is to understand the requirements of appealing Ratings Decisions to the BVA.

Let’s look at what the VA’s Policy Manual says about the Motion to Advance on the Board of Veterans Appeals Docket…

M21-1MR, Part I, Chapter 5, Section F.

Remember, the M21-1MR is the VA’s policy manual for its VA Raters – it’s basically their playbook for how to process your VA Claim.

How would you “use” the M21-1MR in a situation involving a Motion to Advance for a BVA Hearing?

Well, remember how the USC and CFR said  that one of the grounds for Advancement is where “Administrative Error result[ed] in a significant delay in docketing the case”?

The M21-1MR basically lays out the entire process for the Certification and Docketing of a BVA Appeal – where the VA doesn’t follow that procedure you have a viable argument for Administrative Error.

Click here to download a FREE Copy of M21-1MR, Part I, Chapter 5, Section F, the section of the M21 that address the Administrative Process for “Docketing, Certification, and Claims Folder Transfer” of your Appeal to the BVA.

Comb through this document looking for any error in the VA’s processing of the appeal.

And note that there are TWO ways – 2 distinct administrative processes for advancing your appeal to and at the BVA.

The first is PRIOR to the delivery of your C-file to the BVA…the second is AFTER the delivery of the C-File to the BVA.

So What DOES A Veteran File in a Motion to Advance on the BVA Docket and WHERE is it filed?

For a Motion to Advance on the Board of Veterans Appeals Docket AFTER the file is transmitted to the BVA, your motion must include the following (view 38 CFR 20.900 for specific details):

1) Motions for advancement on the docket must be in writing

2) They must identify the specific reason(s) why advancement on the docket is sought

3) They must include the name of the veteran AND the name of the appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf),

4) They must include the  applicable Department of Veterans Affairs file number.

Here’s WHERE the Motionmust be filed – for MTA’s AFTER the delivery of the C-File to the BVA:

Director, Administrative Service (014),

Board of Veterans’ Appeals,

810 Vermont Avenue, NW.,

Washington, DC 20420

Remember the basic rules of mailing to the VA or BVA:  never send originals, always keep copies, and always send Certified Mail Return Receipt Requested.

When to File a Motion to Advance on the Board of Veterans Appeals Docket.

The answer to this question depends on where in the Board of Veterans Appeals process you are.

If your C-File has not yet been delivered to the BVA, then download the M21-1MR Section that explains the pre-file delivery process for advancement at the VA Regional Office….but basically you can request advancement the minute you file the Notice of Disagreement (NOD).

If your C-File HAS been delivered to the VA, then you can file the Motion to Advance anytime up until the BVA issues a decision in your appeal.

The MTA covers not only the scheduling of the hearing, but the consideration and issuance of a decision by the BVA Hearing Official as well.

In the comments below, tell me if you’ve ever filed a Motion to Advance a Hearing on the Board of Veterans Appeals Docket – and if so, the results you had.

I love to hear what y’all are experiencing at the BVA when acting pro-se.

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If you are a Premium Subscriber to the Blog, with paid Annual Membership, you can click here to download a template for a generic Motion to Advance to use in drafting the request for advancement after the C-File has been sent to the BVA.

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