CAVC Process: How to Appeal your Case to the Court of Appeals for Veterans ClaimsCAVC Process: How to Appeal your Case to the Court of Appeals for Veterans Claims

The process in a U.S. Court of Appeals for Veterans Claims (CAVC) or Veterans Court appeal involves multiple steps overseen by a federal court, which can be confusing and daunting. You can appeal a decision made by the Board of Veteran Appeals (BVA) by filing an appeal with the CAVC. The CAVC, a federal appellate court with judges appointed by the President of the United States, retains exclusive jurisdiction to review all final BVA decisions.

Balkcom Law Firm will be glad to assist you through the CAVC  appeals process and answer any questions you may have about your rights or what the next steps are. Contact our office to request a free consultation: 804-482-0036.

What steps are involved in Court of Appeals for Veterans Claims appeals?

When a veteran disagrees with the BVA’s decision, he or she has the right to ask the Court of Appeals for Veterans Claims to provide a judicial review. By filing an appeal, the veteran (called an appellant) is essentially taking legal action against the Secretary of the U.S. Department of Veterans Affairs (called the appellee). Once the case transfers to the Court of Appeals for Veterans Claims, it is no longer under the jurisdiction of the Department of Veterans Affairs (VA). It becomes a federal case.

Once at the Court of Appeals for Veterans Claims, the legal process can get even more perplexing and tangential than the earlier stages of appeals. If you have yet to retain a lawyer, now would certainly be the time to do so. A lawyer can walk you through the process and help you prepare the best legal argument possible.

Below is a brief overview of the steps involved in a CAVC appeal:

  1. We will file a Notice of Appeal (NOA) with the CAVC within 120 days of the BVA decision on your case and request a copy of your claims file from the VA.
  2. The Court will then notify all involved parties that the case is under appeal, place the case on the docket (the Court’s record and scheduling of proceedings), and issue everyone a Notice of Docketing. When the clerk at the CAVC dockets your case, your claim officially becomes a court case.
  3. The VA will then have to serve you with a copy of your complete file referred to as the Record Before the Agency (RBA), and the Court will then issue you a 60-day Notice to File Brief.
  4. We will review your records for accuracy and submit your Designation of Record (DOR) to the Court within 60 days of docketing.
  5. Our attorneys will review your VA claims file (called the Record Before the Agency or RBA) and discuss a strategic plan of action with you.
  6. The Court will schedule a briefing conference and send you an order with the date and time of the initial conference.
  7. We will participate in a telephone conference on your behalf with the VA attorney. A member of the Court’s Central Legal Staff will moderate the conference. We will try to resolve the issues during the call. The sooner we can get the original decision overturned, the sooner you can receive your benefits.
  8. If the issues in your case are not resolved at this conference, we will proceed to briefing. (Briefs are simply written arguments provided to the Court.)

Once the Court has received all the records and briefs, it will assign your case to a Court of Appeals for Veterans Claims judge who will render a decision.

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FTCA and MCA: Personal Injury Claims Against the Federal GovernmentFTCA and MCA: Personal Injury Claims Against the Federal Government

The Federal Tort Claims Act (FTCA) and Military Claims Act (MCA) allows lawsuits to be filed against the federal government for injury occurring on federal governmental property or due to the negligence of a federal employee working in the scope of his or her employment. The feres doctrine prohibited such claims, but the FTCA and MCA allow limited exceptions like these.

Injury claims against any government agency involve special rules and limitations. Talk to an attorney before you miss any special deadlines!

What does the FTCA and MCA do?

The FTCA and MCA allows you to sue for personal injury caused by or on governmental property and its employees. However, recovery is more limited than state law claims. Federal law governs the procedure for FTCA lawsuits, but state law controls the substantive law, how a state will treat certain rights, duties, or obligations in the state where the injury occurred.

Car Accidents Caused by Federal Employees

If you are injured in a car accident caused by a federal employee during the scope of his or her job, the federal government may be sued under the FTCA. For example, if you are rear-ended by a U.S. Army truck, the federal government may be on the hook for your damages.

Premises Liability (Slip and Fall) Claims

Injury occurring on federal property caused by the negligence or neglect of the government, its tenants, or its employees can make the government responsible for the injury.

This does not mean that the plaintiff, the legal term for the injured party, does not need to prove that the government acted negligently and that because of that negligence he was injured. The of any other premises liability case remain intact. Again, under the FTCA and MCA, the government limits how much you can recover, so it is best to get an attorney to help you with your claim.

Time Limit to Sue

The statute of limitations for bringing a premises liability claim against the federal government is two years. This means that failing to file a lawsuit within this timeframe could lead to your case being dismissed.

Before a Lawsuit Can Be Filed

Prior to filing a lawsuit, a party must submit a claim to the agency directly in control of the employee or premises. Only after such claim is denied may the injured party then proceed to court. FTCA and MCA lawsuits are filed and presided over by federal court.

FTCA and MCA claims against the federal government are complex. If you have been injured while on government property seek legal assistance with your lawsuit. Contact Balkcom Law Firm for assistance!

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Military or VA Medical Malpractice: What Documents Will My Attorney Need?Military or VA Medical Malpractice: What Documents Will My Attorney Need?

When starting a medical malpractice case, the injured patient should provide their attorney evidence both of what their injuries are and of how they were injured.  Documents from the military or VA can take awhile to receive, so you should request these as soon as you know you want to file a claim, so you can give to your military or VA medical malpractice attorney. 

The list below outlines the documents generally needed for medical malpractice cases:

  • Medical records from both military and civilian providers
  • Medical bills if tricare or VA has not paid for medical care
  • Death certificate and autopsy report if necessary
  • Correspondence with treating doctor 
  • Receipts for related out-of-pocket expenses 
  • Pay stubs or tax returns to show income loss from injury
  • Photographs  before and after the incident

 

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When is Delayed Treatment VA or Military Medical Malpractice ?When is Delayed Treatment VA or Military Medical Malpractice ?

We have had many clients contact our firm when the VA or military has delayed treatment in some way. An example of this is when you go to the ER with breathing difficulties, and the ER doctor sends you home with an antibiotic, but a CT is warranted. Then you have to return the next day demanding a chest CT because your symptoms worsened. The VA most likely delayed treatment and breached the standard of care. The question becomes whether the delayed treatment caused the undesired end result like death or more severe damage to the lungs. This can get a little murky and make the case hard to win.

We had a case like the above, but the client had been treated for neck cancer 2 years prior to going to the ER, and the undesired end result stated that he died from cancer. We had to tell the client that even though the VA may have breached the standard of care by not treating the client with a CT, the VA did not cause the death from cancer. This is difficult news to tell clients especially when they have lost a loved one that received poor care from a medical facility.

The Necessity of Expert Testimony

In almost all cases, expert testimony is required to prove delayed treatment. A qualified expert in the particular medical discipline must give testimony as to how a reasonably competent doctor would have treated the patient properly and without delay. If it can be established by the patient (and his or her legal team) that the original doctor breached the standard of care, then a case for malpractice can be established. If, for example, it can be stated unequivocally that a reasonable doctor would have diagnosed the problem within 48 hours, but the defendant doctor neglected to recheck the patient for 2 weeks after the initial examination and did not run any other tests, he or she can be sued for malpractice.

Proving Harm Resulting from Negligence

Doctors, like everyone else, make mistakes. Patients trying to prove medical malpractice must prove that the doctor’s negligence has caused foreseeable harm, such as:

  • Pain and suffering
  • Medical bills
  • Loss of earning capacity
  • Loss of capacity for enjoyment

It is not enough to show that the patient experienced any of these problems; it must be shown that the delayed treatment was responsible for the negative effects.

If you or a loved one has experienced a delay in obtaining a proper treatment and has suffered physical pain, emotional trauma, and/or financial loss as a result, you should contact Balkcom Law Firm, PLLC to discuss your options.

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Military Malpractice: Why an Attorney Will Not Take Your Case…Military Malpractice: Why an Attorney Will Not Take Your Case…

The people who want us to represent them may be coping with severe injuries and illnesses, the loss of loved ones, and financial difficulties. The attorney must provide you with an honest assessment of your case. Unfortunately, military and VA medical malpractice laws are complicated, and these cases are very difficult to prove and win without the right evidence. Although every case we evaluate is unique, here are some of the common reasons we do not take cases: 

We Don’t Think Your Case Will Meet the Threshold Elements for Medical Malpractice

To win a malpractice case, a medical provider must have given substandard treatment and this negligent treatment must have resulted in significant harm. This could include a missed diagnosis, significant delay in treatment, improperly drafted medical records misleading other physicians, and other medical errors. However, it’s important to understand that not all errors are considered malpractice.   Your injury MUST have been actually and foreseeably caused by your medical provider.  Also, if you signed a consent form agreeing that you understood the risk of the procedure, then you may also not have a case.  Also, if other medical professionals in the same position would have made the same decision, then you likely don’t have a medical malpractice claim.

Another major reason, an attorney will not take your military or VA malpractice case is the 2 year statute of limitations has passed or there is not sufficient enough time to get your case finished by the statute of limitations.

Some people also think their damages are worth way more than their attorney suggests. If the client cannot be talked down to a reasonable amount, then you may not have been a good fit for that law practice.

Our attorneys work extremely hard to fight for the rights of medical malpractice victims. Expert witnesses cost hundreds to thousands of dollars depending on the specialty needed. Also, an expert might be hard to find! Since we accept cases on a contingent fee basis, we do not get paid unless we recover compensation for you.  Additionally, military and VA malpractice claims take quite a bit of time (ie. 1-3 years) to resolve or move forward to Court.  Those factors require us to be very selective about the cases we accept.  There are other instances where it is too difficult to prove what damages you may have suffered from the  medical condition for which you originally sought medical care and what damages were the result of any medical negligence.  The law requires us to prove that the outcome more likely than not would have been different and that can be difficult to prove in some cases.

Contact Balkcom Law Firm, PLLC if you want a military or VA medical malpractice case review.

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Difference Between Initial VA Claim and Appeal: Important Because an Attorney Can Only Represent You On AppealDifference Between Initial VA Claim and Appeal: Important Because an Attorney Can Only Represent You On Appeal

The veteran must file an original claim with the VA before an attorney can get involved in the case.

To file an original claim with the VA use the  Application for Disability Compensation and Related Disability Benefits, and numbered: 21-526EZ. This form can be obtained on-line at: https://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf.

Once you fill out the 21-526EZ form, you will file with the VA regional offices located nearest the veteran’s residence, online at www.ebenefits.va.gov, or through mail & fax. Keep any receipts of submission including certified mailing receipts or notices from the VA to ensure you have the proper dates for when claims have been started.

Department of Veterans Affairs
Evidence Intake Center
PO Box 4444
Janesville, WI 53547-4444
Fax: 844-531-7818
Foreign Claims Fax: 248-524-4260

Rating Specialists will look over your claim and make a decision on your case (percentage, service connection, etc), and issue you a decision.

If you disagrees with one or more of the determinations in the rating decision, then you have one-year from the date of the decision to file a VA disability appeal.  This is when an attorney can represent you through the VA benefits process, so pay attention to any documents pertinent to appeal and send it to your attorney!

Three Appeal Avenues: The appeal information should be mailed to the veteran along with the rating decision, but it can be easily obtained on-line at the links listed below for each. 

1.Supplemental Claim: You must submit “new and relevant” evidence with this type of appeal. The VA will review the additional evidence and send out a new Rating Decision. You can easily obtained this form on-line at https://www.vba.va.gov/pubs/forms/VBA-20-0995-ARE.pdf.

2.Higher Level Review: This is a request for a new review of your claim by a higher level judge. The higher-level reviewer WILL NOT consider new evidence since the rating decision. You are able to request an informal conference with the Higher Level Reviewer to discuss your claim(s). You can easily obtain this form on-line at https://www.vba.va.gov/pubs/forms/VBA-20-0996-ARE.pdf

3.Decision Review Request for Board Appeal (Notice of Disagreement): Your attorney can appeal your case directly to the Board of Veterans Appeals (BVA) and your case will be reviewed by a Veterans Law Judge (VLJ). You have the option to have the VLJ review the current evidence only, submit additional evidence, and/or request a hearing with the VLJ. You can easily obtain the form on-line at https://www.va.gov/vaforms/va/pdf/VA10182.pdf

Contact Balkcom Law Firm if you have questions about doing an appeal to the VA, VBA or even the Court of Appeals for Veterans’ Claims.

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Military Medical MalpracticeMilitary Medical Malpractice

1. You can sue the military or government for medical malpractice.
Military dependents and active duty service members, may file a claim for medical malpractice when injured at a military treatment facility (in the U.S. or abroad).

2. You generally have only two (2) years to file a claim for military medical malpractice.
This generally applies to all cases. However, there are exceptions to the rule. The two-year time span can vary based on your case, so you will want to contact a medical malpractice attorney as soon as you know there has been negligence.

US Army doctor holding stethoscope near his shoulder – studio shot

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Failure to Diagnose: What Can Lead to This?Failure to Diagnose: What Can Lead to This?

Ways in which medical professionals can err causing a missed diagnosis include:

  1. Failure in detailing the history of the patient’s medical problem.
  2. The physical medical exam is misleading (i.e. the symptoms vary from the classical findings).
  3. The medical provider is not aware of the relative risks of the disorder in different patient populations.
  4. The medical provider does not order the right diagnostic study to diagnose the issue.
  5. The disorder does not follow the regular clinical course to make a diagnosis, and the medical provider does not consider alternatives.
  6. The medical provider fails to follow-up after giving a course of medicine to a patient in order to see if the treatment was beneficial and therefore diagnosed properly.
  7. The medical provider fails to listen to the patient given the lack of time provided in a office visit.

Contact Balkcom Law Firm at 804-482-0036 or kimberly.balkcom@gmail.com if you believe your military or VA provider failed to diagnose a condition and you need help with your claim.

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About Kimberly Lynch BalkcomAbout Kimberly Lynch Balkcom

Kimberly Balkcom is an experienced medical, military law attorney. She served as a GS employee in the U.S. Army for over 2 years at the GS-13 level. She worked at Fort Bragg, North Carolina one of the busiest medical board offices in the U.S. Army, and succeeded in 25% more appeals than her colleagues.

As a military lawyer serving as a medical board counsel, she advised hundreds of clients regarding their administrative medical and physical evaluation boards in front of the U.S. Army and Department of Veteran Affairs (VA) receiving favorable results allowing service members to either become medically retired, gain combat codes to increase severance amounts and get tax-benefits, and increase VA ratings. She also advised on matters involving the UCMJ, administrative military law, and numerous Army and DOD Regulations.

Kim is currently advising and representing:

1) Soldiers and Veterans in front the military and VA for VA benefit appeals, medical malpractice claims, and personal injury claims;

2) Clients on personal injury claims and medical malpractice under the torts claims act;

3) Federal employees through the Equal Employment Opportunity (EEO) administrative process.

Please call or text Balkcom Law Firm, PLLC if your case fits within one of these areas to see if Attorney Balkcom can help you with your case.

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