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Brief Description of the VA Benefits Claims Appeals Process
(for those who are seeking the help of an attorney)

The VA benefits claims appeal process is very complicated. One of the factors contributing to the complexity is that federal law restricts when and how a benefits claimant may hire an attorney for legal services before the VA. In most cases, if the case has not proceeded past the VA’s regional office and on to the Board of Veterans’ Appeals (BVA) located in Washington, DC, the claimant is prevented by law from hiring an attorney to assist him or her. Rather, in most cases the claimant is not allowed to hire an attorney until after the case has gone completely through the VA benefits appeal process to the BVA, and the BVA has issued a FINAL decision denying benefits.

Because of the complexities of the process and the rules restricting attorney representation, it is very important for a veteran or a veteran’s dependents seeking the help of an attorney to be able to identify where their case currently is in the appeals process, and to communicate this information correctly to the attorney. This will help the attorney, and in turn help the benefits claimant receive the best advice and other legal services in the case. The following description of the VA benefits appeal process is provided so the veteran and, or, the veteran’s dependents may more easily identify the current status of their claim and communicate this to the attorney (it is not intended to be used as legal advice or relied upon by a benefits claimant to prosecute any claim for VA benefits):

Stage 1: A Claim for Benefits has been Submitted to the local VA Regional Office

The VA’s adjudication process does not begin until the veteran or the veteran’s dependents have submitted a claim for benefits to the VA’s local field office, known as the VA Regional Office, “VARO”, or simply “RO.” Unless a claim has been submitted to the VARO, the VA generally is under no obligation to assist, notify or otherwise be in contact with a claimant about the claimant’s entitlement to any benefit. Once a claim is submitted, the VARO is required within ten (10) days to acknowledge in writing that it has received the claim. However, an actual decision on the merits of the claim may not be provided to the claimant for many weeks or months.

If the veteran or the veteran’s dependents have not submitted a claim, but are investigating or planning to do so, the attorney should be contacted immediately and informed about the claimant’s plans.

Once a claim has been submitted, the VA is obligated to assist the claimant in securing any evidence relevant to the claim, including to secure the veteran’s service medical and personnel records as well as all VA and private medical records. In addition, the VARO is required to schedule and conduct medical examinations of the claimant that may be necessary to substantiate the claim. Therefore, the VARO may be in contact with the claimant with correspondence related to the VA’s efforts to secure evidence before there is an actual decision about the claim. Because of these efforts to “develop” the record in the case, an actual decision on the merits of the claim may not be received for many weeks or months.

Stage 2: The VARO Issues an Unfavorable Decision, Which Requires
the Claimant to Submit a Formal “Notice of Disagreement” to
the VARO

When the VARO makes a decision about a claim for VA benefits, the formal document containing the decision is called a “Rating Decision.” The Rating Decision is supposed to contain the VA’s explanation for how they decided, including referring to the evidence that was relied upon to reach the decision. Typically, the Rating Decision is mailed to the claimant as an attachment to a cover letter from the VARO that announces the decision. Importantly, another attachment to the cover letter and Rating Decision is supposed to be the “Notice of Appellate Rights.” The Notice of Appellate Rights is the VA’s way of informing the claimant of how, when and where to start the appeal process if the claimant is dissatisfied with the Rating Decision.

The one and only way for a claimant to start the VA’s benefits appeals process is to submit an item of correspondence to the VARO called a “Notice of Disagreement,” which often is abbreviated to read “NOD.” The NOD must be in writing and 1) be addressed to the VARO that issued the Rating Decision; 2) identify the Rating Decision by its date; and 3) describe the part or parts of the Rating Decision about which the claimant disagrees. If there is too much in the Rating Decision that is erroneous, or the claimant does not feel comfortable attempting to describe the nature of his or her dispute with the Rating Decision, then the claimant’s NOD should simply specify that the claimant “disagrees with the entire Rating Decision.”

Another requirement for the NOD is that it absolutely must be submitted to the VARO within one (1) year of the date on the VARO’s cover letter that notified the claimant of the Rating Decision. If the NOD is not sent to the VARO within this one-year period, the Rating Decision then becomes final and, as a general matter, it no longer can be appealed or otherwise challenged.

Stage 3: The VARO Issues Its “Statement of the Case”

After a claimant submits a timely Notice of Disagreement, the VARO is required to respond to it by preparing and issuing to the claimant a Statement of the Case, or “SOC.” The SOC is supposed to provide a more detailed explanation for the unfavorable Rating Decision. It should contain a summary of the law and regulations that apply to the case, the evidence relied upon, and the specific reasons for why the VARO denied the benefits the claimant is seeking. In addition, the SOC also should contain another notice of the claimant’s appellate rights, including notice of the deadline for the claimant to respond to the SOC (see Stage 4 below).

Stage 4: The Claimant Prepares and Submits His “Substantive Appeal” to the VARO

Just as the NOD (from Stage 2 above) is the claimant’s mandatory response to the VARO’s Rating Decision, the claimant also must prepare and submit a Substantive Appeal to the VARO as the claimant’s similarly mandatory response to the SOC. The Substantive Appeal can be submitted to the VARO as correspondence from the claimant, however the VA also has a specific form available to use for this purpose called the “VA Form 9.”

The purpose of the Substantive Appeal is for the claimant to set out in writing his or her “contentions” or arguments for why the VARO’s denial of benefits is in error. In theory, the Substantive Appeal is supposed to identify specific items in the SOC that are in error. However, such specificity often is not possible because the SOC is poorly written, ignores issues or arguments, and contains irrelevant information. Therefore, especially if the claimant is unsure about providing a detailed response to the SOC, he or she should always include in the Substantive Appeal the following statement: “I dispute every item in the SOC that is not consistent with my claim for entitlement to the benefits at issue.”

Also just as with the NOD, there is an absolute deadline for the claimant to submit the Substantive Appeal. The exact deadline may vary, however, depending on when the SOC was sent to the claimant. The Substantive Appeal either must be filed with the VARO no later than 60 days from the date of the SOC (see Stage 3 above) or, within one year of the date of the VARO’s notice to the claimant of its Rating Decision (see Stage 2 above), whichever is the later date.

If the Substantive Appeal is not sent to the VARO within either 60 days of the SOC or one year from date of notice of the Rating Decision, whichever is later, then the VARO’s denial of the benefits the claimant is seeking becomes final and, as a general matter, this particular denial decision no longer can be appealed or otherwise challenged.

Once the claimant’s Substantive Appeal is submitted to the VARO, the Board of Veterans’ Appeals (BVA), located in Washington, DC, is given primary jurisdiction to review the case and make decisions about it. However, despite the filing of the Substantive Appeal and the BVA’s jurisdiction over the case, it still may take many weeks or months, and sometimes years, before the case actually arrives at the BVA for a decision. Most often, such delays occur because evidence continues to be submitted by the claimant or secured by the VARO. When this happens the VARO is suppose to consider the new evidence and either grant the claim or continue its denial. If the claim continues to be denied, the VARO is supposed to issue a “supplemental” SOC (see Stage 3 above), about which the claimant has a right to respond. In some cases there can be numerous supplemental SOCs, all of which must be addressed before the case is actually sent to the BVA. As a general matter, however, regardless of the number of supplemental SOCs and additional evidence considered by the VARO, because the claimant previously has submitted the Substantive Appeal the case will automatically go to the BVA for its review (unless the VARO has fully granted the claim or the claimant withdraws the claim).

Stage 5: Review and Decision by the Board of Veterans’ Appeals (BVA) Located in Washington, DC

When the VARO finally is ready to transfer the claimant’s case to the BVA, the VARO is supposed to send notice of this action to the claimant. In most cases, the VARO’s notice of this transfer states that the claimant has 90 days within which to submit–directly to the BVA–further evidence and argument, a request for a personal hearing, or a request to change representatives. However, under its rules, the BVA does not have to wait for 90 days before they can review and take action in the case, including to deny the claim. This outcome is possible, although as a practical matter it is rare for the BVA to issue a decision in a case within 90 days of its arrival there.

In most cases, it takes the BVA much longer than 90 days to issue a decision in a case. This is because the BVA suffers from a serious and long-standing backlog of cases. The backlog is due to the number of appeals in comparison to the personnel resources at the VA’s disposal. In other words, the VA, including the BVA, does not have enough employees to quickly or efficiently process the hundreds of thousands of claims and appeals in the system. As a practical matter, it can take as long as one or two years, and many times even longer, for the BVA to issue a final decision in a claim for benefits.

BVA “Remand” Decisions

The most common decision the BVA will make is to not make a decision at all. That is, in more than 40 percent of the cases it reviews the BVA will “remand” the case back to the VARO (or to a new location called the “Appeals Management Center,” also known as the “AMC”). A remand is not a “final” BVA decision (thus, unless the VARO grants benefits to the claimant’s satisfaction, the case will always be returned to the BVA at some later date for a final decision). Rather, a remand is an interim BVA decision taking action to correct some deficiency the BVA has found in the case.

Most commonly, in a remand decision the BVA finds that there is not sufficient evidence, or the evidence in the case is flawed, thus preventing them from making a final decision. The remand to the VARO or the AMC will contain instructions for how any deficiency is to be corrected, such as instructions to conduct another medical examination or to secure medical treatment records the VARO failed to collect in the first place. Another common deficiency the BVA often seeks to correct in a remand decision usually involves a violation of due process. For example, if the claimant had asked for a personal hearing before the VARO, and the VARO failed to provide the hearing, the BVA will return the case to the VARO with instructions for the hearing to be conducted.

Importantly, in most cases, because a remand decision is not a “final” BVA decision, the claimant may not hire an attorney after this type of decision. Despite there being a “non-final” BVA decision to remand a case, there are some important exceptions to the rule prohibiting a claimant from hiring an attorney. Therefore, it is important that this type of decision be assessed by the attorney to determine if one of the exceptions apply.

BVA Decisions to Deny Benefits

After decisions to remand, the most common BVA decision is to deny the claimant benefits. A BVA denial decision is a “final” BVA decision. After such a decision, a claimant may lawfully retain the services of an attorney to represent the claimant before the VA and the United States Court of Appeals for Veterans Claims (Veterans Court). Because there are important deadlines affecting the claimant’s right to appeal to the Veterans Court and to hire an attorney once the BVA issues a decision denying benefits, it is very important that the claimant contact the lawyer immediately upon receiving the denial decision. One such deadline is that the claimant must hire the lawyer within one year of the date stamped on the face of the BVA denial decision. Another is that a Notice of Appeal to the Veterans Court must be filed with the Veterans Court within 120 days of the date stamped on the face of the BVA decision. Missing either of these deadlines prior to contacting a lawyer to discuss your case will limit the options available to you and the attorney to challenge the BVA’s denial decision.

BVA Decisions that “Grant” Benefits

In far fewer cases (about 20 percent), the BVA issues a decision that grants some benefit. Even a “grant” of benefits by the BVA must be closely reviewed by the claimant and the claimant’s attorney or other representative to ensure that the “grant” includes all of the benefits the claimant is seeking. The “20-percent” figure for decisions to grant benefits cannot be taken at face value. This is because the number and frequency of a grant of benefits by the BVA is a statistic that the BVA manipulates, so the actual rate of favorable decision is much less than this.

For example, a claimant may have three separate claims on appeal, service connection for a knee disability, hearing loss, and a facial scar. If the BVA grants the claim for service connection for the facial scar, and denies the claims for the knee and hearing loss, the BVA counts this decision as a “grant” of benefits despite the two denied claims. The two claims that are denied are not counted as part of the group of BVA denials.

Another instance of how the BVAs manipulates its statistics for the grant of benefits is a case that involves a single claim, but for which the full amount of the benefits possible has not be granted. For example, in a claim for a rating increase, a claimant currently receiving a 50-percent evaluation for service-connected post-traumatic stress disorder potentially is entitled to a 70-percent evaluation, or the next higher evaluation under the rating schedule, 100 percent. If the BVA grants an increase to the 70-percent evaluation, but not to the 100-percent level, the grant to 70 percent is counted by BVA as a grant, but the denial of the 100-percent evaluation is not counted as a denial.
Because the denial of any part of a claimant’s case that is denied by the BVA is a “final adverse BVA decision,” these types of BVA decisions both are appealable to the Veterans Court and trigger the claimant’s right to hire an attorney (see Stage 6 below).

Stage 6: Options Available for a Claimant Receiving a BVA Decision Denying a Claim for Benefits

If the goal of the claimant who is affected by an adverse BVA decision is to retain an attorney to represent him or her, the right to do so becomes an option for the claimant at this time. This option is not available forever. The attorney must be retained by the claimant within one year of the date on the face of the adverse BVA decision.

If the claimant’s goal also is to challenge the adverse BVA decision (with or without an attorney’s assistance), other than to do nothing a claimant has three (3) options to choose from:

a) submit a Notice of Appeal to the United States Court of Appeals for Veterans Claims (“Veterans Court”);

b) submit directly to the BVA a “motion for reconsideration” of the adverse decision; and

c) “reopen” at the VARO the claim that was denied.

Appeal to the Veterans Court

There is a strict deadline for the claimant to submit a Notice of Appeal to the Veterans Court. Once the BVA issues an adverse decision the window of opportunity for the claimant to submit the “Notice of Appeal” is extremely narrow. The claimant only has 120 days from the date stamped on the front of the adverse BVA decision to file the Notice of Appeal. This deadline is not the Veterans Court’s rule, but is a rule imposed on the Veterans Court by the United States Congress. This means that the Veterans Court does not have the power to excuse a claimant from meeting this deadline. Only in very rare circumstances will the 120-day time limit be excused by the Veterans Court.

The importance of the claimant’s option to submit a Notice of Appeal to the Veterans Court cannot be overstated. The only “court” available to a claimant who seeks relief from an adverse BVA decision denying benefits is the Veterans Court. In other words, a claimant cannot go to his or her local U.S. District Court, state superior court, or any other court to challenge a BVA decision that has denied a claim for benefits. Congress created the Veterans Court in 1988 to have “exclusive” jurisdiction over these cases. (Prior to 1988 it was not possible to challenge an adverse BVA decision in any court of law.) Therefore, a claimant denied benefits has only “one shot” to secure “judicial review” of an adverse BVA decision––the United States Court of Appeals for Veterans Claims.

It is not necessary for a claimant to have an attorney before he or she submits a Notice of Appealto the Veterans Court. However, the claimant is in a much better position to effectively present his or her case if an attorney is retained to represent the claimant before the Court. The VA is always represented in the Veterans Court by a government attorney.

Filing a Motion for Reconsideration to the BVA

A second option for a claimant affected by an adverse BVA decision is to submit to the BVA a “motion for reconsideration” of the BVA decision. To succeed before the BVA with a motion for reconsideration the claimant must convince the BVA that the decision to deny benefits contains an “obvious error of fact or law.” This is an extremely difficult goal to achieve. It is very rare for the BVA to change its decision based on such a motion.

There is no time limit for a motion for reconsideration to be filed. However, if the motion is filed with the BVA within the same 120-day period that governs the claimant’s right to submit a Notice of Appeal to the Veterans Court, the deadline to appeal to the Veterans Court is extended to 120 days after the date the BVA issues its decision on the motion for reconsideration. If the claimant complies with these two separate deadlines, the claimant can both have his case reviewed by the BVA again on reconsideration and reviewed on appeal by the Veterans Court. If the claimant submits the motion for reconsideration to the BVA after 120 days from the date on the face of the BVA decision, the 120-day appeal period for the Veterans Court is not extended and the claimant forfeits the right to appeal that BVA decision to the Veterans Court

Reopen at the VARO the Claim that was Denied

The third option available to the claimant affected by an adverse BVA decision is to reopen the claim (i.e., start over) at the VARO. In this scenario, the adverse BVA decision remains in place and stands as a final decision.

As a general matter, to reopen a claim following an final adverse BVA decision it is required that the claimant secure “new and material evidence.” Depending upon the facts and issues involved in the claim, securing new and material evidence to reopen a claim at the VARO can be very difficult. Oftentimes the claimant is required first to appeal the VARO’s determination that the evidence submitted by the claimant is not new and material rather than the merits of the claim. Another negative factor with this option is that the effective date for the grant of any benefits as a result of the reopened claim is the date the claim is reopened, not the earlier date of the claimant’s original claim. In comparison, if the claimant is successful in overturning the BVA decision as a result of a successful appeal to the Veterans Court or in a motion for reconsideration at the BVA, and the claimed benefits are awarded, the effective date for the payment of the benefits is the date of the original claim.

 


 

Updated 01 December 2005