VA Disability - Step 7: The Notice of Disagreement (VA Appeal)

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Overview

The VA Regional Office [VARO] decides your claim initially. But if you disagree with their decision, you can ask for it to be reviewed within the VA,  and then by the courts.

  • First, you can request review by a Decision Review Officer within VA;
  • Second, you can appeal a denied claim to the Board of Veterans' Appeals.
  • From there you can appeal an unsatisfactory result to the U.S. Court of Appeals for Veterans Claims.
  • Either you or the VA can appeal from there to the U.S. Court of Appeals for the Federal Circuit.
  • Finally, either party can appeal this decision to the United States Supreme Court.

The Department of Veterans Affairs provides a simple overview pamphlet Understanding the Claims Process: How Do I Appeal?. (This is a large .pdf file that may be slow to download.)

The appeals process can appear complicated and lengthy at first. But remember that the alternative is allowing to VA have the last word on your claim. Actually, this was how the process worked until 1989. A veteran was allowed only an appeal to the Board (which is a part of VA). Whatever the Board said, that was it. So, although the current process is not perfect and can take a long time, at least you have the chance to go to federal court if your claim merits the effort. 

What is the first step to appeal a decision I disagree with? [The "Notice of Disagreement"]

So, VA has sent you a notice that your claim has been denied. Or you disagree with the level of rating or effective date assigned. This notice should include several pages describing your appeal options. First read all this information very carefully. If you do not follow the instructions and meet the time limits, you can lose your right to appeal.

In general, you have one year from the date of the rating decision to notify VA of your intent to appeal.

To start the appeals process, prepare a document called a "Notice of Disagreement."   The VA does not provide a form for this.

The requirements for a Notice of Disagreement [NOD] are straightforward, but you must comply with them. Otherwise, you could lose your chance to appeal. An NOD must:

  1. be in writing,
  2. identify the rating decision by date,
  3. state that you disagree with the rating decision, and
  4. state your desire to appeal the decision.

Nothing else is required and saying anything more can actually create problems. This is not the place to present your arguments.  Simply state that you disagree with the decision and want to appeal. Sign the NOD.

Then mail it to the VA Office that made the decision (unless you have been told that the records of your case have been transferred to a different VA office). Use certified mail, return receipt requested. Keep a copy as the first document in your new "appeals" file.

VA will acknowledge receipt of the NOD by letter. That letter will include instructions and options for proceeding.

Do I opt for a Decision Review Officer, or go straight to the Board of Appeals?

You will need to decide whether to ask that a Decision Review Officer [DRO] review your decision - as an interim step - or go directly to the Board of Veterans Appeals. A DRO is a senior VA rating person who is supposed to have more experience in rating claims. The advantage of going with a DRO decision is that it is usually quicker. However, if the DRO does not change the decision, you have delayed Board review while waiting for the DRO. Deciding whether to select a DRO review or not is not an exact science, but generally DRO's are better at addressing factual errors, not legal errors.

It may be helpful to review the VA's own rules about what a DRO can and cannot do. This is a technical manual; go here if you want to read it.

THE VA STATEMENT OF THE CASE

After getting your NOD, the VA will create a written document which contains their position on the facts and law related to your claim.  This is called the Statement of the Case [SOC].  This is a very important document.

Don't be surprised if you wait a long time for the SOC to arrive. The VA is taking an average of 200 days to prepare an SOC.

The rules require the VA to mail a copy of the SOC to you at your last known address.  If you already have a designated representative helping with your case, the VA will also send a copy of the SOC to him.

Read the SOC very carefully.  First, look for mistakes about your medical history, your service record or other important facts. Second, look for things that are missing in the SOC, including important information about your medical history, your service record or other important facts.

THE VA FORM 9

In the same mailing with your SOC, the VA will send you a VA Form 9.  This is the form used to request review by the Board of Veteran Appeals within VA.

Complete and return this form to VA within the time specified on the Form. If you're late, you will lose your right to appeal.

It is very important to fill out the Form 9 correctly and completely.   You need to make decisions about which mistakes or missed information are the most important ones to address.  You need to decide whether to ask for an in-person hearing, and whether this should be with your local VA office or at the Bureau of Veteran Appeals. If you later change your mind, this can slow up or hurt your case.

You also have the option of seeking legal help at this point.  The VA allows both lawyers and "agents" to become involved at this stage in the process. All advocates have to meet VA requirements.  While you know the facts of your claim better than anyone, a lawyer can help make sure that the Form 9 is done well. This can maximize your chances of success on appeal. Typically, a lawyer will agree to take your case in return for a percentage share of the final VA benefit award.

The VA provides a searchable database of lawyers, agents, and veteran service officers who have met their requirements for handling VA claims. Go there to search for "VA accredited" advocates in your state. 

When do I submit more evidence, if I have any?

Next the claims file will be sent (eventually) to the Board of Veterans' Appeals [BVA].  Once a claim arrives at the Board, the Board will send you a "90-day letter" asking for any additional evidence you may have. As the name suggests, you have 90 days to respond to this request. If you send nothing the Board will proceed on the record without any additional evidence. This 90 day limitation seems arbitrary, as Board decisions now take more than two years. But you must still observe this time limit.

You also have the option to ask for a hearing with a Board member, either in person or by videoconference.

 


Go to Jim Strickland's longer Guide for more details about appeals, as well as Attorney Jim Forrestal's advice on how to file a "Clear and Unmistakable Error" claim (which has no time limit).

June 2010