Filing an Appeal of a VA Decision

26 Feb Filing an Appeal of a VA Decision

If you believe that you have been denied benefits that you are rightfully entitled to, or that the amounts of your benefits are lower than they should be, you have the right to appeal most VA decisions within one (1) year of the date that the decision was made.  After one year, the decision is final and can only be appealed in the case of clear error on the VA’s part.

Step One: Notify the VA

If you disagree with a VA benefits decision, you must write to them to indicate so to initiate an appeal.  This letter is called a “Notice of Disagreement.”

In this letter, you must indicate what aspects of their decision that you specifically disagree with, whether it is the denial of certain benefits or the amount of benefits awarded.

For disability claims, you must file VA Form 21-0958, “Notice of Disagreement.” You can download a copy at https://www.vba.va.gov/pubs/forms/VBA-21-0958-ARE.pdf.

For all other claims, your Notice of Disagreement only needs to indicate your identifying information and the specific denials/amounts that you are appealing.

Step Two: Decide Whether to Officially Appeal

After you have sent in your Notice of Disagreement, the VA may reconsider your claim and grant you the benefits you believe you are entitled to. In most cases, however, the VA will send you a Statement of the Case, which will include:

• Descriptions of the guidelines, rules, regulations, or laws that it was required to follow in making its determination,
• Why the guidelines as applied to your case required the decision they gave you, and
• A copy of VA Form 9, “Appeal To Board of Veterans’ Appeals.”

At this point, you can either accept their ruling and explanation or fill out VA Form 9 to proceed with filing an official appeal.

Step Three: File Your Claim with the Board of Veterans Appeals

If you decide to appeal the VA’s decision, mail VA Form 9 back within 60 days of receiving your Statement of the Case or within a year of receiving the original decision, whichever date is later. Included on the form are the options available to you for requesting a hearing before the Board of Veterans Appeals, or “BVA.”

The VA office will then forward all of your information to the Board of Veterans Appeals.  You will have 90 days from the date they notify you that your claim has been forwarded to:

• Gather and submit any additional evidence that you think may be helpful
• Find or change legal representation

Step Four: Attend a Board of Veterans Appeals Hearing (If Requested)

You have several options when requesting a hearing before the Board of Veterans Appeals.

• If you choose to have a hearing via teleconferencing, it will delay the Board’s decision.

• If you choose to have a hearing before the Board in Washington, D.C., it will delay the Board’s decision even more.

• If you choose to have a hearing at your regional VA office, it will significantly delay the Board’s decision.

The hearing itself will be informal and is not subject to the strict rules of evidence that apply in federal court proceedings, nor will it involve being cross-examined by the Board’s representative. The Veteran Laws Judge may ask you questions, and you or your representative will be given the opportunity to argue your case.

After the hearing, the Board will do one of three things:

• Grant your appeal
• Deny your appeal
• Ask for the original VA office that received the appeal for more information before making a ruling

If your appeal is granted, the process is over.  If not, you have additional options to continue to fight for your benefits.

Step Five: Motion to Reconsider or Appeal to the Federal Court System

Your next step in the appeals process will depend on why you are continuing your appeal.

You can file a motion for the Board of Veterans Appeals to reconsider your appeal if:

• You believe that the BVA made an obvious error of fact or law
• You have obtained new and material evidence relating to the claim
• You believe that the BVA otherwise made a “clear and unmistakable error” (known as a “CUE motion”)

There is no time limit for filing a motion for reconsideration.

For all other reasons, you may take your case to the U.S. Court of Appeals for Veterans Claims.

You have 120 days from the date of the BVA’s decision to appeal the court.

• The court will not hold a new trial.
• The court will not receive new evidence.
• The court will review the record considered by the BVA.
• The court may allow oral arguments.

If the court overturns the BVA’s ruling, you may be granted your benefits, or you may receive a new hearing before the BVA at the court’s direction.

If the court upholds the BVA’s ruling, you can appeal to the U.S. Court of Appeals for the Federal Circuit, and then to the Supreme Court, if necessary.