Written By Peter Gaytan,
This week we are examining the path you must follow to appeal a VA decision.
After your separation from the service, you enter the VA system. All decisions about eligibility for benefits are from the VA – not the Department of Defense. For each claim for a benefit, you will receive written notice of the VA determination of your eligibility (for example, priority group assignment, disability rating, etc.). This decision may come from a VA Regional Office (RO), VA medical facility, or other local VA office. You may appeal any VA decision, but must follow the rules for appeal, being sure to meet each deadline.
The Board of Veterans’ Appeals (BVA) is part of the Department of Veterans’ Affairs. There are about 60 veterans law judges (VLJ) and a large staff of attorneys. The BVA has four decision teams set up by geographical region. The chairman is appointed by the President (on advice of the Secretary of Veterans Affairs) and the VLJs are appointed by the Secretary. To a degree these are political appointments, but the VLJs do not change with a change in Administration. The VLJs make the decisions on each appeal. The BVA has a staff of lawyers, referred to as Counsel or Associate Counsel, and they review the facts of each appeal and make recommendations to the VLJ.
WHAT CAN BE APPEALED
You can appeal any determination by a VA Regional Office of a claim for benefits, and some determinations by VA medical facilities, such as eligibility for medical treatment (for example, your priority group assignment).
You can decide to accept part of a VA determination and appeal another section of the decision, and you can appeal the level of benefit granted. For example, if a veteran does not agree with the percentage rating for any disability, he can appeal. Or let’s say that a veteran receives a 10 percent rating for loss of limb, but he believes it should be a higher percentage rating, he can appeal the decision. You can include the medical opinions of outside Doctors to support your case. VSO reps also research prior decision that have set precedents and cite them in their claims when relevant.
However, you can’t appeal (1) decisions concerning the need for medical care and (2) the type of medical treatment needed.
THE FIRST DEADLINE
You have up to one year from the date that your local VA office mails you its initial determination of your claim. Again, that’s why it’s critical that the VA has your current address. The clock is ticking once that letter is mailed. Unless you can prove that there was a “clear and unmistakable error” (CUE) by the VA, when the year has passed, the VA decision is considered final. Proving a “clear and unmistaken error” is extremely difficult and only about 3 out of every 20 cases filed late for a CUE are accepted for review.
THE FIRST STEP
Once you receive the initial determination of your claim and decide to challenge it, you must send a letter to the same local VA Regional Office that issued the decision, called a Notice of Disagreement (NOD), that states:
(1) You disagree with the local VA office’s claim determination, and
(2) You want to appeal it
There is no special form required at this point (eventually you will complete VA Form 9 that details your rationale for appeal). You are simply putting the VA on notice that you are appealing the decision. Send the letter by registered mail with return receipt requested so you have a record of delivery confirmation.
In your NOD, you must be specific about the issue or issues you are appealing. For example, if you have filed a claim for a knee disability and a heart condition, but only disagree with the VA determination on the heart condition, make that clear in your NOD. Here’s an example of what a NOD should say: “I disagree with the rating decision, dated June 1, 2006, denying service connection for right ear hearing loss and tinnitus.”
The VA will establish a claims folder for your case that includes all correspondence and reports. The claims folder remains in your local VA office until and unless you request a BVA hearing. It is the basis for adding your case to the Board of Veterans’ Appeals docket (schedule). Appeals are assigned a docket number/date once the Form 9 is filed. The BVA reviews appeals based on the order in which they are added to the docket.
NEXT STEP: STATEMENT OF THE CASE
Once the local VA Regional Office receives your NOD, it is possible that the staff may decide to review your case, change its original decision, and grant your claim. This doesn’t happen very often. When it does, in most cases, it is usually because the claimant submitted additional evidence with the NOD or informed the VA of the existence of additional evidence. Upon receipt of the new evidence, the VA may grant the claim. VA may also grant one part of the claim, but continue the denial of other issues in the claim. Each issue on appeal receives its own separate decision. Since Decision Review Officers (DRO) have “difference of opinion” authority to change a denial of benefits, most decisions that are overturned after an NOD usually are a result of a DRO review and not the traditional appeals process.
But assuming that doesn’t happen, the next step is for the local VA Regional Office to mail you a Statement of the Case (SOC) and a blank VA Form 9 that you will need to complete in order to proceed with the appeal.
The SOC summarizes the evidence and laws on which the VA decided your case. It will be up to you (or your representative) to prove why this reasoning is incorrect.
Next week: The Clock is Ticking
Peter S. Gaytan is the author of For Service to Your Country, The Insider’s Guide to Veterans’ Benefits (Citadel, 2008), available from Amazon, Barnes and Noble, and other booksellers. He has served as an advocate in securing and protecting the earned benefits of America’s veterans for more than a decade. Gaytan is the Executive Director of the American Legion, the largest veterans service organization in America.
*Material released with permission of the authors.
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