OVERVIEW OF THE APPEALS PROCESS STEP BY STEP
- File a claim for benefits
- Receive a VA ruling on your claim that you wish to appeal.
- File a Notice of Disagreement
- Receive a Statement of Case from the VA stating the rationale and laws for denying your claim to benefits
- File a Substantive Appeal in the form of a VA Form 9 explaining the reasons you are in disagreement with the decision and offer documentation and evidence that supports your claim and rights to benefits.
IF DESIRED A HEARING IS SCHEDULED, THEN:
- Case is heard by the Board of Veterans Appeals in the event a hearing was requested or the Board of Veteran Appeals independently reviews your case.
- A decision is made.
- Appeals to the decision are filed via the appropriate method of either Motion for Reconsideration, CUE Motion or United States Court of Appeals for Veterans Claims if desired
- A final decision is given
- Appeals filed with the U.S. Court of Appeals for the Federal Circuit
- Appeal with the Supreme Court
- At this point, the decision cannot be overturned and remains final
One of the most important things to remember when seeking VA benefits is to keep track of all documentation. This does not only apply to VA documents but also any expert documentation that you may receive from people such as doctors, psychiatrists, psychologists, etc. Keep detailed notes of phone conversations being sure to get the name of the person with whom you spoke. Keep all paperwork filed away in a fireproof box to keep it protected and have easy access.
Make note of your claim number and make sure does easily available when contacting VA by phone. Always reference your claim number when speaking with the VA staff member. Notate your claim number on all VA correspondence.
Also be sure to keep VA current on all your contact information updating when necessary.
Any decisions concerning eligibility for benefits come from the VA not the Department of Defense. They are responsible for determining your eligibility, assigning a priority group, and giving veterans their disability rating. Decisions may come from a regional VA office, a local VA office, or a VA medical facility. Any decision given by VA may be appealed as long as the appeal rules are followed and all deadlines are met.
Appeals are handled by the Board of Veterans Appeals which is part of the Department of Veterans Affairs. It is comprised of approximately 60 Veteran Law Judges accompanied by a large staff of attorneys. There are four Board of Veterans Appeals decision teams set up according to geographic regions. The President with the advice from the Secretary of Veterans Affairs appoints the chairman and the Secretary appoints the Veterans Law Judges. The Veteran Law Judges do not change with administrations, however, and they are the ones responsible for making the decisions on all appeals. The staff of lawyers serving the Board of Veterans appeals is responsible for reviewing the cases and making recommendations to the Veterans Law Judges.
DECISIONS THAT CAN BE APPEALED
Any claim for benefits determined by VA Regional Office can be appealed along with some VA medical facility decisions as well such as priority group assignment. You also have the right to appeal a portion of a decision instead of the decision as a whole. For instance, the percentage rating for disability can be appealed if the veteran feels it does not carry a high enough rating. Documentation will also be accepted from an outside medical professional when processing an appeal.
There are two instances where an appeal is not allowed; the first is in regards to decisions concerning the need for medical care, and the second is the type of medical treatment needed.
If considering an appeal, be sure to note that there is a deadline of one year after the VA office mails to you its initial determination of your claim to counter with an appeal. After that time the decision is considered final and an appeal will not be allowed. That is why it is extremely important to keep contact information current with the VA. The only way to file an appeal after the one-year mark is if there was a clear and unmistakable error on the part of the VA when the letter was mailed to the veteran initially. This is extremely difficult to prove and 95% of the time it’s turned down.
The first step to take if you have decided to challenge a decision is to send a notice called a Notice of Disagreement to the same local VA Regional Office that initially issued the decision. The only thing that needs to be included in this notice is that you disagree with the VA office’s decision concerning your claim and you want to appeal it.
There is no special form to file and no other documentation to send at this time, you are simply notifying VA that you are challenging their decision. Be sure to send this notice registered mail return receipt to ensure you have proof they received the notice. In your Notice of Disagreement be sure to be clear as to which part of the claim you are appealing especially if you are only appealing a portion of the claim and not the claim in its entirety. At this point, VA will open a claims folder for your case that contains all correspondence and reports related to your claim. This folder will remain at your local VA office until it is used in your Board of Veterans Appeals hearing which will be scheduled after Form 9 is filed.
As a side note, if you have a physical change of address during the appeals process be sure to notify the VA of this change of address. A written request to have your claims folder moved to a local regional VA office near your new current residence should be filed with your former regional VA office.
It is possible that after the VA Regional Office receives your Notice of Disagreement it will change its original decision and grant your claimed appeal. This, however, is a very rare occurrence, and usually when it does occur it is due to one of two things. The first is the submission of additional evidence such as outside doctors reports etc. that have been handed over to the VA when the appeal was submitted. The second is that each appeal is reviewed by Decision Review Officers who often have a difference of opinion and the authority to change denial of the benefit.
Claims that are reversed upon initial submission of appeal are often a result of this review. Portions of the appeal may be overturned while some of the original decision may stand. If, as in most cases, the original decision is not overturned and the appeal still needs to continue the VA office will mail you a Statement of the Case and a blank VA Form 9 that needs to be completed to continue with the appeal. A Statement of the Case is a letter that summarizes evidence and laws that were used when the VA initially decided your case. It is now up to you or your designated representative to provide proof as to why this reasoning is not accurate.
As soon as the VA regional office mails out the Statement of the Case, time until the next deadline begins. Once you receive the Statement of the Case as well as the VA Form 9, which should have been included along with it, you have 60 days to file a Substantive Appeal. This is done by completing Form 9 and return it to VA. This form may be completed by the veteran alone or it is recommended that they seek the assistance of a Veteran Service Officer. This form has three main purposes.
It must first clearly and in detail state the benefits that the veteran is asking to be granted as well as pointing out the mistakes on VA’s part for denying the claim. Finally, any additional evidence that supports your case and proves that the Statement of the Case is incorrect should be submitted at this time. It is important to make sure that your claim is submitted in a straightforward clear and to-the-point manner. Be sure to include any paperwork you may have that can strengthen your case as to why the VA made a wrongful determination of your claim. A VA appeals representative will help you determine which documents will be of help when submitting your case. Return your VA Form 9 to your local VA office by registered mail return receipt to ensure you have proper proof of delivery.
If necessary an extension of the 60-day deadline for filing a Substantive Appeal can be requested. However, good cause for the extension needs to be shown and your reason for this should be documented. One example of a good cause would be a hospitalization in which a doctor’s statement could be used as proof. Most of the time these extensions are granted.
There is an exception to the 60-day rule. If the veteran is still within the one-year period after separation, they have until that one-year anniversary date to file a Form 9 to appeal a VA decision even if that puts the date more than 60 days out after receiving the Statement of the Case from the VA. If, however, the appeals process is started within the first year after separation with the submission of the Notice of Disagreement yet the Statement of the Case is received after the one year anniversary of separation has passed the veteran then has only 60 days to file the Form 9 with the VA. Here is a formula to keep in mind when trying to determine the deadline dates: submission of Form 9 must be sent to the VA as follows:
The date the Regional Office sends its initial determination in the mail plus one year
The date the Statement of the Case is mailed +60 days
Whichever date happens to be later is when the VA must receive the completed Form 9.
Simultaneously contested claims have a different time frame when looking at deadlines. These are cases in which two parties are both claiming entitlement to fight the denial of a claim or its status in which one party will be granted acceptance and the other one will be rejected.
These cases are rare but do occur for example, when two individuals are claiming rights to a veteran’s life insurance policy or two spouses, one current one an ex, claiming rights to get Dependency and Indemnity Compensation. In this circumstance, each of the parties must file a notice of disagreement within 60 days after the local VA has mailed the initial determination of a claim. Then after the VA office has mailed out the Statement of the Case, each party has 30 days to file a VA Form 9.
At times it is necessary to submit new evidence that helps support your appeal to a claim. This type of information could be, for example, a new medical diagnosis from a VA medical facility or an outside doctor. The preferred method of submission is doctor’s treatment records instead of a simple statement by the doctor to the VA. With new information, the VA will respond to this submission with a Supplemental Statement of the Case which is the start of the new time frame to file a response. If you disagree with this Supplemental Statement of the Case for a regular appeal you have 60 days in which to file a disagreement. In the case of a simultaneously contested claim, you have 30 days to file a disagreement.
The next step in the process, once you have filed all necessary paperwork, is to have your case added to the Board of Veteran’s Appeals docket. This is done on a first come first serve basis. You will be assigned a docket number where the first two numbers refer to the year in which it was filed and the following number is the order in which it was received that year.
Under extremely rare circumstances a petition can be filled to have your case be evaluated sooner but these are usually denied. Some instances when it may be prudent to file for a motion to advance on the docket would be impending foreclosure on the veteran’s home, a terminal illness, or a delay getting your case added to the docket caused by a gross error on the part of the VA. Proof of the extenuating circumstances will have to be submitted such as a letter from the bank informing the VA of the foreclosure or doctor’s diagnosis of illness.
Any motion to advance on the docket should be submitted to:
Board of Veterans’ Appeals (014)
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
WHEN YOU CHANGE YOUR MIND CONCERNING AN APPEAL
It is acceptable to make the decision to withdraw a portion of your appeal without having to start all over with the appeals process for the issues you still want to challenge. If you want to omit an issue on your Statement of Case or Supplemental Statement of Case from being evaluated by the Board of Veterans Appeals you must put it in writing on a VA Form 9 stating you are withdrawing your appeal on a specific issue. Be sure to be very clear and detailed as to which issues are being withdrawn and which are still being appealed. However, you cannot add issues of appeal to an existing claim only withdraw previously submitted issues. Any new disagreements of denial of benefits must be started new through the appeals process.
PERSONAL CASE HEARINGS
It is not required to request a personal hearing of your case before the Board of Veterans Appeals, however, it is strongly recommended. At this hearing, you, your representation, and your veteran’s law judge will be present and you will be presenting testimony and any evidence you have to support your case. When requesting a hearing you must choose which type of hearing best meets your needs. There are three types of Board of Veterans Appeals hearings available.
The first is a hearing that is held in Washington D.C.; the second is a hearing presided over by a Board of Veterans Appeals Traveling Board held at a Regional Office in your home state, and the third is a hearing done through videoconferencing also conducted at an instate Regional Office. All three of these types of hearings allow you to plead your case directly to the Veterans Law Judges. If none of these hearing types are suitable for your needs there is an alternative. It is possible to request for a hearing to be held at a local Regional Office but is not heard by the actual Board of Veterans Appeals, however, Be aware that the VA will not cover travel expenses in association with a requested hearing.
If you desire a hearing, mark the box on the VA Form 9 requesting one and indicate where you would like the hearing to talk place, either Washington D.C. or Traveling Board at your Regional Office. You may only have a hearing in one of the two places, not both. If you choose to have a videoconference hearing with a board member located in Washington D.C., you must contact your Regional Office to see if they are technically equipped to handle this kind of meeting. If you are wanting a local hearing with the Regional Office only that is not heard by the actual Board of Veteran Appeals, requests should be sent in writing directly to the Regional Office requesting this type of hearing.
Scheduling a Board of Veterans Appeals meeting is a complicated process and it is recommended to use the videoconferencing option if at all possible for a more speedy hearing. This eliminates the need for the board members to schedule travel arrangements which can cause significant delays. The Travel Board will schedule hearings depending on the following circumstances: the number of cases to be heard, the time required to hear each of the cases, and the regional location of these cases.
The VA prefers to send the Travel Board once there are a certain amount of cases that can be heard at one time in a particular region and only if there are travel funds available to attend these hearings. These procedures can lead to lengthy wait times for a hearing to take place. Hearings requested to be held in Washington D.C. will be scheduled close to the time they are set to be evaluated, usually about three months before review for a final decision. Most of the time the decision is made by one Veteran Law Judge but in some cases where the Board of Veteran Appeals grants a motion for reconsideration, it is evaluated and decided on by a panel of three Veteran Law Judges.
Depending on the type of hearing you choose, your claims folder will do one of three things. If you choose to have a local hearing with the Regional Office, your claims folder will remain with that office. When having a hearing by Traveling Board, the claims folder will remain with the local Regional Office until the hearing is concluded and then be transferred to the board. If a videoconference hearing is used or a hearing located in Washington D.C. office, your claims folder stays at the local VA office until shortly before the hearing is scheduled to take place and is then transferred to the Board of Veterans Appeals.
Once you have requested a hearing, the VA will send you a letter informing you that your claims folder has been sent to Washington for consideration. From this point, you have 90 days or until the date on which your hearing is scheduled, whichever comes sooner, to add evidence to your file or select or change representation. After this time, a written request showing good cause will be required to submit any additional evidence supporting your case. It is up to a board member to either accept or deny this request. Since it is unknown how soon you will receive your hearing date, it is important to act fast if additional evidence needs to be included in your claim.
APPEAL STATUS UPDATES
You will be kept informed through mail correspondence of when your claims file is transferred to Washington D.C. and when it is received in the Washington D.C. office. If for some reason you do not receive any notifications call your local VA office for updates to your claim status. If at any time after you have received written notice of the receipt of your claims folder in Washington D.C. you are needing a status update, call the following number to receive this information: (202)565-5436. You will need to reference your claims folder number to have it readily available.
RECEIVING YOUR DECISION TO AN APPEAL
HOW A DECISION IS MADE
Once your docket finally comes up for evaluation, a board member and staff attorney will review the claim along with all the evidence, transcripts if any, representative statements if, and all other documentation in the claims folder. It is also at this time that if instructed by the board member, that the attorney will do any subsequent research pertaining to the case. Staff attorneys have the right to offer recommendations to the board member, but it is the board member’s right to either accept, reject or amend this recommendation. The legal authority to issue a final decision lies with the board member. After all reviews have been completed the board member will make their decision, in writing, and mail it to your current address on file with the VA.
The best-case scenario is for your claim for an appeal to be granted and you can start receiving the benefits you were seeking. However, you must be prepared for a possible negative decision. Due to the increasing number of requests for benefits, a good deal of appeals are rejected. There is another possible decision the Board of Veterans Appeals may reach; that is the need for the case to be remanded. This occurs when the board feels that the case needs to be sent back to either the local VA office or the Appeals Management Center for further study and evaluation.
The Appeals Management Center was created for the purpose of taking some of the burdens of remanded cases from the Board of Veterans Appeals off of the local Regional Offices. This is where the majority of the remanded cases are forwarded for further review. Cases are typically remanded because of new laws in Congress or new rulings from the United States Court of Appeals for Veterans Claims have been issued. Other reasons include that you do not have all the required documentation to come to a decision or that documentation is not in the proper format preferred by the VA.
Upon remand, the Appeals Management Center or Regional Office will evaluate the file once more and perhaps make a new ruling in the case. On the other hand, they could issue a new Supplemental Statement of Case laying out the reasons the claim has been denied after additional review. If this is the case, you have 60 days to respond to the new Supplemental Statement of Case. After additional review and study has been made on the remanded case, the case is quickly returned to the Board of Veterans Appeals and returned to its original place on the docket where the Board of Veterans Appeals will once again review the updated information and determine a final decision.
APPEALING THE BOARD OF VETERANS APPEALS DECISION
If you are in disagreement with the decision concerning your appeal, you have the following options. The first is to file a Motion for Reconsideration directly with the Board of Appeals. This action does not often result in a change of decision and is very rare. The only time this should be considered is if there has been an obvious error of law or fact on the part of the Board of Veterans Appeals and this mistake could have wrongfully affected the outcome of the final decision. For example, if the medical records pertinent to the claim are misread by the board and it is clearly stated in those records to the contrary the veteran should file this motion. A Veteran Service Officer can help you file this type of motion.
A second option to appeal would be to reopen the case. This is done if there is significant and compelling new evidence that would greatly affect the outcome of the decision in this case. Evidence that has already been previously submitted will not be considered adequate information to reopen the case. Any additional material that is being considered for a case that has been reopened should be submitted to your local VA office and not the Board of Veteran Appeals.
The third option you have would be to file a CUE Motion directly with the Board of Veterans Appeals. This CUE Motion refers to a case in which you believe there is a “clear and unmistakable error” (CUE) with the boards’ final decision.
This motion is similar to a Motion for Reconsideration but much more restrictive and difficult to prove. It is recommended to have an expert in veteran’s law assist you when making this type of appeal. You only get one shot at this. If the CUE Motion is denied, you cannot request another appeal. CUE Motions may be filed at any time but will not be ruled on if a timely Notice of Appeal with the Court of Appeals for Veterans Claims has been filed.
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
Most of the time there is a disagreement with the final decision of the Board of Veterans Appeals, an appeal is filed with the United States Court of Appeals for Veterans Claims. You have 120 days from the date the Board of Veterans Appeals mails out your final decision to file a Notice of Appeal. Be aware that this court is not part of the Department of Veterans Affairs. The Notice of Appeal should be filed directly with the court by you, your lawyer or representative to the following address:
United States Court of Appeals for Veterans Claims
625 Indian Avenue, NW, Suite 900
Washington, DC 20004
A copy of this Notice of Appeal must also be filed with the Veterans Affairs General Counsel at:
Office of the General Counsel (027)
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
This copy with the Veterans Affairs General Counsel does not preserve the right to appeal, so make sure the appeal notice is also filed with the United States Court of Appeals within the allotted 120 days or you will not be able to submit an appeal.
Once this has been done you will receive a booklet, the Notice of Appellate Rights with the Veterans Board of Appeals decision to familiarize yourself with the process. This court is an appellate level court which means no new evidence can be submitted in regards to the case after the Board of Veterans Appeals made its final ruling. The court will not take into question the facts of the case unless it is clear that they are obviously wrong.
Most of the cases brought before the Court of Appeals for Veterans Claims will not overturn the Board of Veterans Appeals decisions due to inaccurate facts, but rather it will focus on the question of whether the Board of Veterans Appeals properly applied law or court precedents. Due to this, the majority of the cases in which the Board of Veterans Appeals decisions are overturned are remanded and not actually reversed by the Court of Appeals for Veterans Claims. Reversals at this stage in the appeal process are very rare. Oral arguments with the court are not often held, but when they are it is strongly recommended that the veteran bring representation. Legal fees that are determined based on a percentage of the benefits being sought are limited to a maximum of 20 percent if the decision is granted in favor of the veteran. The Secretary of VA is responsible for reviewing legal fee agreements.
IF DENIED IN THE COURT OF APPEALS FOR VETERANS CLAIMS
You have only two remaining actions to take if your claim is again denied in the Court of Appeals for Veterans Claims. An appeal then can be filed with the U.S. Court of Appeals for the Federal Circuit and if denied at this level, it can be taken to the Supreme Court. The chance of receiving a reversal of the decision at this level is extremely unlikely.
If the death of the veteran precedes the board issuing the final decision on the case, the case generally is dismissed with the decision. It is the right of the survivors, however, to file a claim for any benefits to which they are entitled.