02 Sep Deciding to Appeal
Veterans can appeal to the Board of Veterans’ Appeals (BVA) any rejection or decision considered unsatisfactory. The BVA belongs to the Department of Veterans’ Affairs and is located in Washington, D.C.
Dissatisfaction with eligibility for disability compensation, disability ratings, or pension are general types of appeals, which constitute more than 90 percent. For example, a veteran denied benefits for a disability that they believe is service connected and a veteran denied benefits for a disability more severe than the VA graded it are the most common situations reviewed, though the reasons for appeal are not limited to these two cases.
One thing that can’t be appealed by law are verdicts made by medical personnel regarding the need for medical care and kind of treatment required. For example, a physician’s conclusion to prescribe or not prescribe a particular drug or administer specific treatment can’t be appeal through the VA. Instead, those with these types of concerns must direct their voice to the director of the VA medical center.
Beginning the appeals process
Individuals do not need an explicit form to appeal. A written statement from the veteran to the VA regional office regarding the veteran’s reason for disagreement called a Notice of Disagreement (NOD) should be sent to the VA office. Writing the NOD in clear, concise language is important.
Veterans have the time frame of one year in which to submit a NOD to the VA regional office after receiving the original claim.
Receiving the VA’s decision
After receiving a NOD and evaluating the appeal by examining the veteran’s case a second time, the VA regional office can either agree with the argument or prepare a Statement of the Case (SOC). In the case that a SOC is made: the VA regional office’s statement that they will not reverse the original decision in detail.
It will provide the evidence and appropriate laws and regulations outlining the confirmation of original verdict, and how the veteran may subsequently carry on their appeal by completing a VA Form 9, Appeal to Board of Veterans’ Appeal. This form can be found attached to the mailing form from the regional office along with the SOC.
Preparing to send your appeal further
The next step moves away from the VA which has been in charge of all the decision up to this point. If the conclusion the VA office makes is unsatisfactory to the veteran, he or she can take their appeal to the Board of Veterans Appeals (BVA).
It could be advantageous to obtain legal representation here if the action has not been taken already, as 90 percent of veterans do to guide them through the appeals procedure. Usually, a lawyer from the veterans’ service organization (VSO) or state veterans’ office is called upon since they work free of charge.
A VA Form 21-22, Appointment of Veterans’ Service Organization as Claimant’s Representative is required to permit a VSO for representation for a case. Otherwise, to obtain an attorney, a VA Form 21-22a, Appointment of Individual as Claimant’s Representative is needed.
To obtain these forms veterans can contact their VA regional office or find them online for download at https://www.vba.va.gov/pubs/forms/VBA-21-22-ARE.pdf and https://www.vba.va.gov/pubs/forms/VBA-21-22A-ARE.pdf.
To begin an appeal process:
- Complete VA Form 9, Appeal to Board of Veterans’ Appeal. This form should be sent with the Statement of the Case (SOC) (See “Receiving the VA’s Decision” above).
- The VA is to simply describe the benefit desired and the mistakes found in the SOC. Whether or not the veteran would like a personal hearing should also be stated.
- Send the completed form to the VA regional office from which the denial came.
VA Form 9 is available at VA regional centers or for download at www.va.gov/vaforms/va/pdf/VA9.pdf.
When filling out the VA Form 9, remember it must be submitted within 60 days of the when you received the SOC or within one year of when the regional office informed you of the original denial (whichever date is later) because if you do not complete this task in time, the right to appeal can become obsolete.
The VA regional office reconsiders cases if new information or evidence previously unpresented is presented with the VA Form 9. New, relevant information delivered in the completed VA Form 9 provides a better chance for the VA to reconsider. However, if the opposite opinion is made and the veteran is denied again, the VA will organize a Supplemental Statement of the Case (SSOC), which is comparable to the Statement of the Case with the addition of new evidence a veteran submits.
A veteran has 60 days from when they receive the SSOC to submit their disagreement.
It is also possible to request a local office hearing in which a meeting transpires between you and a hearing officer from the local office. The meeting is held at a VA regional office and to organize a local office hearing, you can contact the local VA regional office or the appeal representative (if you have one) as soon as possible.
A local office hearing could provide the opportunity for the veteran and their representative to ask questions concerning the appeal and claims process, which could have bearing in gauging the strength of the claim. Unfortunately, a local office hearing is not known to make a claim process any more expedient.
Continuing the appeal process after passing SOCs and SSOCs
Once the SOC, SSOC, VA Form 9 with additional evidence with all the veteran’s responses are completed, they are collected and documented by the VA regional office and interned into a claims folder. This claims folder is then the foundation for the official appeal to the BVA.
The veteran making a claim has 90 days (otherwise known as the 90-day rule) after the VA regional office sends their appeal to the BVA in which they can supplement more evidence to their file, demand a hearing with the VBA, or secure a new representative (if they have one).
Gathering all pertinent information from the very beginning of the process of appeal is enormously important to the long-term procedure. When submitting new evidence to a claim file, the VA regional office is required to review the case again with the new information. However, if it still disagrees, it writes an SSOC. The veteran has 60 days to reply to the SSOC, delaying further the time the appeal reaches the BVA. Revisit the “Submitting Your VA Claim” section for more information.
When the appeal reaches the BVA, it is placed on the BVA docket, which houses the list of other appeals ready for review. This list is categorized by order of receipt. When a new appeal is added to the docket, its allocated the next higher docket number over the appeal received prior and the smaller the docket number, the sooner it is evaluated.
A claims folder stays with the VA regional office up until three to four months before the docket number is estimated to appear. It is then moved to the board’s office in Washington. When the paperwork is successfully transported, the VA regional office notifies the veteran of the claim and the BVA will notify then in writing.
During the waiting time, if you have questions concerning your appeal, it is possible to check in for any additional information with the VA regional office, or if your file is with the BVA, you can call 202-565-5436 for further assistance.
A board member is attached to a claim once its docket number is pulled. These board members are well-versed in veteran laws and benefit claims. They’re the deciding factor after a claim reaches this level with the BVA. Staff attorneys also review claims and add board members in their evaluation, being knowledgeable in veteran laws as well.
Advancing the waiting interval
It is during this period after the BVA has received the claim, that waiting commences. The reason for this is, of course, the backlog of appeals on the BVA docket. The general length of time a claim took to process in 2008 was approximately 4 ½ years.
If a unique case is on the docket that could be judged more imperative than most, a veteran that feels this way can request to have their case advanced on the docket. If this option fits your description, you can directly write to the board members of the BVA and explain your reasoning for the adjustment.
One issue for this option is that the nature of appeals is one of misfortune and to prove that one case is more pressing than another, a veteran must provide extraordinary and sufficient proof that their conditions differ from other cases to have their appeal expedited. Examples of unique situations would be a terminal illness, a danger of bankruptcy or foreclosure, or a VA error that caused a noticeable delay in docketing of an appeal.
If this concerns you and you wish to advance your docketing send a request to:
Board of Veterans’ Appeals (014),
Department of Veteran’s Affairs,
810 Vermont Ave., NW,
Washington, DC 20420
In the past, the BVA has advanced fewer than 3 out of 20 requests on the docket, so this option is not always reliable.
Making your case at a board meeting
Veterans have the option to present their case personally to a member of the BVA. They have the option to choose a meeting at the VA regional office, a Travel Board hearing, or at the BVA office in Washington. If the VA regional offices are chosen, it’s possible to conduct the meeting through video conference, but the veteran is responsible for confirming a video conference is available in their location.
This option is in addition to a local office hearing that was discussed under “Preparing to send your appeal up the chain” earlier in the book.
An advantage of a personal hearing gives the veteran a face-to-face environment in which they can assert their opinion, their evidence, and add or clarify supporting proof attached to their claim. The hearing is recorded and reviewed by the BVA before a final decision is come to. However, most experts are undecided about the impact a personal hearing has on a claim since the bulk of the decision of the BVA rides on the supporting evidence itself.
The VA cannot pay for expenses if you decide you want to have a hearing at the BVA office in Washington or a VA regional office.
If a veteran decides on having a hearing, the VA Form 9 provides a section for requesting one, which is also the accepted way in which a request is made. If the veteran fails to request a hearing on the VA Form 9, they can always make the request alternatively by writing directly to the board so long as it falls under the 90-Day Rule detailed in “Continuing the appeal process after passing SOCs and SSOCs” above.
Requests can be made by sending a message to:
Board of Veterans’ Affairs,
810 Vermont Ave., NW,
Washington, DC 20420
In your request make sure to state if you’d like to have a hearing at the regional office or the board’s office in Washington. Depending on the kind of hearing requested dictates when the hearing will be heard.
If scheduling a Travel Board hearing, it can also be arduous since board members are required to travel from Washington to regional offices for the hearing. Docket number, the total number of requests for hearings in a certain region, how soon the board will be able to review the cases associated with the hearings, and travel resources accessible to the board are all aspects that can command when a Travel Board hearing will be scheduled.
Videoconferences are easier to organize and can be scheduled more frequently than Travel board hearings since the prospect of travel is removed.
If a hearing is scheduled at the board’s office in Washington, the hearing time is usually close to when the BVA will evaluate the appeal which is approximately three months before the case is reviewed.
Anticipating the final decision
Once the BVA reaches a veteran’s docket number and their case is reviewed by a board member and staff attorney, they double check for extensiveness and evaluate all supporting evidence and arguments, the transcript of the hearing, and the statement of the veteran’s representative. Additionally, they review the stance of the regional office’s statement of the Case or Supplemental Statement of the Case for merit. If needed by the board member, the attorney can perform further research into an appeal with recommendations for the board member’s review.
After this, the decision to approve the appeal, deny the appeal, or remand the appeal is made by the board member.
- If the board member remands the case, it means the appeal is returned to the VA regional office for extra work and continued research. After the new work is conducted, a verdict is decided.
- If the board member denies the case, it is returned the board for a final decision. Fortunately, if this does happen, it resumes its original docket in the BVA, making its review time quicker. The board is responsible for sending a Notice of Appellate Rights letter that includes any alternative action that can be taken at this time.
- If the board member approves the case, the board notifies the VA regional office that has weight over the appeal and the benefits commence directly. Reapplying to receive the benefits is unnecessary.
The decision made by the board member will be mailed to the address the board has on file, so keeping personal information up to date with the VA is essential. Notify the VA regional office in case of a change of telephone or address.