By Peter Gaytan

Over the next few weeks, we are going to review the appeals process. Let’s begin.

You have the right to appeal any decision of a claim for veterans benefits. Just be forewarned. It’s a lengthy, frustrating process taking many months, and even years, to complete. In a recent study, Harvard Professor Linda J. Bilmes found that it took up to 177 days for the VA to process an initial claim for benefits and that the average appeal takes 657 days (which means that some appeals take less time, but also many take more time).

Some statistics will help put this process in perspective. In May 2007, there were 638,000 claims pending in the VA’s 58 Regional Offices. More than 400,000 of them were disability claims. Of the total group of claims, more than 28 percent had been pending for more than 180 days. Remember, these are the original applications for benefits – not appeals of VA decisions.

Now consider the next group of statistics. At this same time, there were approximately 159,000 appeals pending in the VA Regional Offices. There were about 32,000 appeals at the Board of Veterans’ Appeals in Washington, DC, and about 16,000 cases remanded and pending at the Appeals Management Center.

With the rapidly growing number of injured veterans returning from the war in Iraq and Afghanistan, the number of claims filed for disabilities has increased exponentially. At the same time, there has also been a huge increase in denials of benefits, first by the VA and then denial of appeals by the Board of Veterans’ Appeals (BVA).

The United States Court of Appeals for Veterans Claims (CAVC), the Federal court that hears veterans’ disability appeals (once they have gone through the VA appeal process), is facing its highest caseload ever. In the first half of fiscal year 2007, 2,542 appeals were filed with the court. In contrast, for the entire previous year, there were 3,729 appeals filed with the court. This growing backlog of appeals is a result of the increased number of claims and the rising number of veterans unhappy with the VA rejection of their claims or the level of benefits allowed.

WHO HANDLES THE APPEAL?

The appeals process involves lots of paperwork and you must develop a logical, clear, well-documented argument in response to the VA’s decision(s). All VA decisions will be couched in legal language and are based on the laws about veterans’ benefits found in the United States Code (U.S.C.) and the Code of Federal Regulations (C.F.R.).

You will want to obtain representation to help you with your appeal. While you are legally permitted to represent yourself, about 90 percent of all appellants do get representation. About 85 percent of them use a representative from a Veterans’ Service Organization (VSO), such as The American Legion or Disabled American Veterans These representatives are trained in the legal code that regulates VA benefits and have experience navigating the appeals process. VSOs don’t charge for representation and don’t even require you to be a member. Your local VA office can provide a list of approved veterans’ appeal representatives in your area.

You can also contact your state or county governments. Some have trained personnel in their veterans departments who will help you with the appeals process.

You have the right to hire a lawyer to represent you. A new law, PL 109-461, Section 101, now permits attorneys to represent veterans for a fee after a Notice of Disagreement (NOD) has been filed. 

If you have been turned down by the Board of Veterans’ Appeals, you can go to the Court of Appeals for Veterans’ Claims. The Veterans Consortium Pro Bono Program offers FREE legal representation for veterans appealing to the Court (http://www.vetsprobono.org/). A veteran can also hire his own lawyer to represent him before the court. Unless the lawyer agrees to represent you for free, you will be charged for representation. If the fee is a percentage of the benefit received, the VA limits those fees to 20 percent of the benefit granted if the final decision is in favor of the veteran.

Aside from paid attorney representation, a veteran can have an appeals representative from a VSO represent them for free before the CAVC.

Before you begin the appeal:

• Ask friends and fellow vets for recommendations of VSO representatives.
• Make an appointment with a VSO representative to discuss your case.
• Ask the representative how long he/she has worked in this field.
• Ask the representative if he/she has handled this type of appeal before.
• While there are deadlines for filing an appeal, generally you have up to one year to file. If you are not comfortable with a particular representative, you have time to look elsewhere. It is absolutely essential that you have confidence in the individual representing you.

To authorize someone to represent you, you must complete VA Form 21-22 to authorize a VSO, or VA Form 22a to authorize an attorney or recognized agent (an individual such as a representative from a State Veterans Affairs Office).

THREE CRITICAL POINTS TO REMEMBER

• It’s absolutely vital that you keep copies of every piece of correspondence, both to and from the VA, as well as any with other experts you consult. Keep a detailed record (date, time, as well as complete notes on what was said) of any phone calls and always get the name of the person to whom you spoke. Keep the file in a safe, fireproof box so that you have ready access to your materials.
• Always notify your local VA office of any change in your address, home and work telephone numbers.
• Keep a record of your claim number easily available. State it in any conversation (should you call) with the VA, as well as mark it on any correspondence with the VA.

Next week: Step-by-Step through the Appeals Process

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.