Maximizing Appeal Success with VA Form 646 - American Legion Guide

1. VA Form 646 How to make it count The American Legion**Cajun A. Comeau**DSO, NC

2. Is TAL recognized as the accredited representative? • Was a hearing requested, and if so, was one held? • Did the RO adequately address VCAA and Decision Review Officer (DRO) Notification? • Is this a Karnas situation? (See later) • If the issue is a remand from the BVA, were all orders complied with, sequentially? • If the issue is a Manlincon remand, has the National Appeals Office been notified to file a Motion to Advance on the docket? (See later) • Are there un-adjudicated issues, the need for additional development, or unperfected appeals? The Checklist The American Legion**Cajun A. Comeau**DSO, NC

3. Issue • Course of Proceedings • Statement of Facts • Argument • Conclusion The Format The American Legion**Cajun A. Comeau**DSO, NC

4. Usually defined as noted on the SOC • If the issue(s) are stated incorrectly revise VAF 646 to reflect the true basis of the claim. • If issue(s) are remanded to the AOJ review the previous BVA decision • Example: The BVA decided N&M evidence has been provided and remands. The issue of N&M has been resolved and the case as stated may now be argued on merit. The Issue(s) The American Legion**Cajun A. Comeau**DSO, NC

5. Introduction containing all relevant historical events in chronological order Course of Proceedings The American Legion**Cajun A. Comeau**DSO, NC

6. Citation of the chronological history and facts of the case • Increased Evaluation- Demonstrate increase in severity • Review of medical records (frequency/course of treatment/symptoms) • Functional restrictions • Lay statements and oral testimony • Service Connection • Notation of where/when/how the injury or disease was incurred • STR notation of treatment • Dates of service/ duty positions • Induction and exit examinations • Presumptive (POW, AO/atomic/chemical exposure) Statement of Facts The American Legion**Cajun A. Comeau**DSO, NC

7. Utilize the Facts of the case (paraphrase) • Cite statutes, regulations and case law if applicable • Medical studies, opinions and other references • Explain how the cited items related to specific facts of the appeal and how they support the appellant position Argument The American Legion**Cajun A. Comeau**DSO, NC

8. Summation of the contentions and request for remedy by granting the benefit being sought on appeal. • A VAF 646 should ALWAYS be filled. • If it was your appeal would you want the VSO to waive the opportunity to argue your case one last time before presentation to BVA? Conclusion The American Legion**Cajun A. Comeau**DSO, NC

9. VA Errors • The BVA Unit finds errors which result in a grant or remand in 73% of cases. • If some of these were spotted in the field, we could win even more cases. The American Legion**Cajun A. Comeau**DSO, NC

10. Did VA miss or discount evidence? • Is the examination adequate? • Failure to comply with regulations? • Why are you forwarding the appeal? Forefront Items The American Legion**Cajun A. Comeau**DSO, NC

11. Karnas v. Derwinski (1991) • The Court held that where the law or regulation changes after the claim but before the administrative or judicial appeal process has been concluded, the version more favorable to the claimant applies unless Congress has allowed the Secretary of the VA to do otherwise and the Secretary has done so. • Manlincon v. West (1999) • The Court held that if the claimant had filed an NOD in the past and the VARO had not issued a SOC the case must be remanded to the VARO for issuance of SOC. • Prior to this decision the VBA was only required to refer the case back to the VARO • Motion to advance Items to Consider The American Legion**Cajun A. Comeau**DSO, NC

12. Questions? The American Legion**Cajun A. Comeau**DSO, NC