Stateside Legal: Appealing the Appointment of a VA Fiduciary

Draft and Send a Notice of Disagreement

Like most other VA decisions, you have the right to appeal the appointment of a VA Fiduciary. You may appeal because you disagree with the VA’s choice of who will be your fiduciary or that you need one at all. This is a user guide to help you through that process. Like most VA appeals, the process starts by sending a ‘notice of disagreement’ (NOD).  Your NOD tells the VA that you think they are wrong and that you do not need a fiduciary.

Your NOD should explain why you think they are wrong and give new evidence. For example, you suspect that you were deemed incompetent because you told the examiner that your spouse or child takes care of the finances. You can explain that you share responsibilities in your family. Your lack of participation your family’s finances is not the same thing as a lack of capacity to take care of your own finances.  You may want to attach statements from your doctor, health care provider or other professional in support of your request.

VA Sends You a Response

Next the VA will review your NOD and send you a response, called a “Statement of the Case” (SOC). The SOC is a letter that says why they think you need a fiduciary and what laws they used to make their decision.

The VA will send you the SOC along with ‘VA form 9.’ VA form 9 (Substantive Appeal) is a detailed NOD for the Veterans’ Board of Appeals (BVA). Using this form, you tell them:

  • what you want,
  • what’s wrong with the VA’s conclusions in the SOC, and
  • if you want a personal hearing.

You either don’t want a fiduciary or you are fighting to get a member of your family approved as your fiduciary. You specify which parts of the SOC that you disagree with. If you want to talk with the person deciding your appeal, request a personal hearing. Personal hearings will most likely be over video conference at your local VA office.

Timeline

The timeline looks like this:

  1. Send Notice of disagreement within one year of VA assigning your fiduciary.
  2. Receive Statement of Case and VA form 9
  3. Send in completed VA form 9 within 60 days of receiving it.
  4. Have a personal hearing with a person who will decide your case. (optional)

If the BVA denies your VA form 9 appeal, there’s still hope. You may file a notice of appeal (NOA) with the Court of Appeals for Veterans Claims (CAVC). The CAVC reviews decisions of the BVA. At this point, you should try to find a lawyer, if you do not already have one. Go to our “Find Local Help” map and select your zip code or state and “lawyer referral.”

You must submit a notice of appeal within 120 days of receiving the decision from the BVA. The 120 day deadline is not absolute, but don’t miss it without good reason. An appeal to the CAVC will not necessarily be dismissed for missing the deadline. However, you need to have a good reason for filing late. For example, you were unable to meet the deadline due to hospitalization for an injury.

Your NOA must include your:

  • Current name
  • Current address
  • Current telephone number
  • Current e-mail address
  • VA claims file number
  • Date of Board decision being appealed

You need to send a $50 check or money order payable to the “U.S. Court of Appeals for Veterans Claims” for the filing fee. You can also send a Declaration of Financial Hardshipif you are unable to pay. The fee or hardship form must get to the Court no later than 14 days after you send the Notice of Appeal (NOA)s.

File the Notice of Appeal (NOA) and filing fee or Declaration of Financial Hardship with the Court by mail, fax, or e-mail to the following address:

Clerk of the Court
United States Court of Appeals for Veterans Claims
625 Indiana Ave. NW, Suite 900
Washington DC, 20004-2950
Fax: (202) 501-5848
E-mail: e-submission@uscourts.cavc.gov

Once the CACV gets your NOA, the Clerk will send a Notice of Docketing. The notice says when they got your NOA and what your next move is.

Original source link: http://statesidelegal.org/appealing-appointment-va-fiduciary