The appeals process: Appeals and claims are as
different as apples and oranges
When I represented Veterans at the Board of Veterans’
Appeals, my clients usually had a lot of questions about the appeals process
and the differences between a claim and an appeal. Even in my current position
as a public affairs specialist for the Veterans Benefits Administration, I
continue to get asked the same questions, so I thought I’d explain the process and
address common questions through a series of blog posts.
What’s the difference between a claim and an appeal?
Often when I speak to many of you, you will say something
like, “I have had a claim pending for 10 years.” Almost always, you have an
appeal pending and not a claim. I don’t say this to undermine the frustration
you feel from being in an appellate status for so long. But understanding
the difference between a claim and an appeal, and using the correct term can
help your VA representative knows where to look, or advise you when discussing
your case.
Claims defined
You submit a claim when
seeking VA disability benefits (or increased benefits) for one
or more medical conditions you believe are related to military
service. These claims can be filed online through eBenefits,
submitted by mail or in person at the nearest VA regional office.
The claim submission, the military service and health care records and
any other evidence associated with the claim are reviewed in order to provide
you a rating determination.
Every claim in VA’s inventory is as distinct as the Service
member, Veteran or survivor who filed it. A complex set of laws, regulations
and court decisions govern how, and to whom, VA administers benefits. The
laws and the process allow Veterans and their survivors ample opportunity – and
even assistance – to provide VA the evidence necessary to approve their claims.
Once the decision is made to grant service connection, VA
examines the medical evidence and assigns a level of disability under the VA
Schedule for Rating Disabilities. You are always afforded the benefit of the
doubt. This means that if the evidence is weighed equally, 50 percent in your
favor and 50 percent against, the claim is granted or the higher of two
evaluations is assigned.
You can work with a state, county or Veterans service
organization. These accredited service officers can help you sort out the best
option for you claim. They cannot charge a fee during the claim
process, and they provide guidance that can help identify and obtain the
evidence necessary for VA to grant a claim. Remember, there are options
for receiving assistance with a claim, so look for someone who files online,
provides information about the Fully Developed Claims Program and takes time to
answer questions.
What I continue to find interesting is that the accuracy of
claim decisions has little bearing on whether we appeal our claims. In fact,
regional offices with the highest quality can often have the highest appeal
rates. That’s not to say processing errors don’t happen, they do, and VA
continues to work to improve claims accuracy. Currently, VBA’s accuracy rate at
the issue (or medical contention) level is 96 percent and the percentage of
claim decisions being appealed remains in line with historical averages of 10
to 12 percent.
The Appeals Process
The multi-stage appellate process is available to you after
you have already received one or more decisions on your claim, but disagree
with some aspect of the VA’s decision. During the appellate process,
an appeal undergoes additional independent reviews, often multiple times and by
different adjudicators, as you or your representative submit new evidence
and/or a new argument. Nearly 74 percent of appeals are from Veterans who are
already receiving VA disability compensation, but are seeking either a higher level
of compensation or payment from an earlier effective date.
Once an appeal has been filed, a Veteran may also engage an
attorney, but at his or her own expense. Attorneys’ fees are typically taken
straight off the top of any retroactive award received from VA.
An appeal is different from a claim. I know first hand that
sending one or the other to VA can seem like the same thing, but understanding
the difference and using the right terminology will help VA and your designated
representative provides the best information in the quickest amount of time.
In my next piece, we will talk more in detail about the
appeals process. In the meantime, I look forward to your comments below.
The appeals process: Appeals at the regional office level
In my previous post, I wrote about the
difference between a claim and an appeal. Most Veterans are aware that claims
are rated at the VA regional office (RO), usually in their state. However, a
lot of Veterans are not aware that appeals are also reviewed at the regional
office before they go to the Board of Veterans’ Appeals (Board). In this
piece I will discuss the RO’s appeal process, your role in the process, and the
things you can do to help expedite your appeal.
Appeals at the local regional office level
Once a VA office
issues its decision on your claim, you have one year from that date to file an
appeal. Read the decision letter closely: it will tell you why VA made
the decision it did. If you are unsure why or how VA made its decision,
ask a Veterans service officer for help. You can also call VA or go to
your regional office.
If you disagree with
VA’s decision for any reason – the effective date of your award, the rating
percentage you were given or the reason you were denied – you should file a
Notice of Disagreement (NOD). If VA included VA Form 21-0958, Notice of
Disagreement, with its decision, you must use that form to file your NOD – it
is mandatory. The NOD is the start of your appeal.
Once you file your
NOD, you have several rights: you can submit new evidence, ask for a de
novo review where a decision review officer (DRO) takes a “fresh look”
at the claim, reviewing the entire claims file and/or ask to testify and
present evidence at a telephone or in-person hearing. VA encourages
Veterans who choose to have a hearing to opt for an informal teleconference
hearing, since these can be scheduled much faster. Many appeals are
favorably resolved at these early stages. Make sure you file your NOD on
time: your right to appeal ends a year from the date of VA’s decision.
When you file your
NOD, you have a choice: either select a traditional review or a de novo review
by a DRO. You can make this choice right on your NOD when you start your
appeal. If you don’t make a decision, VA will mail you a notice of this right,
and you’ll have 60 days to respond, so answer right away.
I’ve mentioned a
couple pro tips, but I want to call them out:
- If you are dissatisfied with
the decision on your claim, file your appeal right away
- When you file your NOD, submit
any new evidence you have; waiting until later on in the process can delay
your appeal
- Also, when you file your NOD,
state if you want a DRO review or a traditional review – this will also
save you time on your appeal
Traditional Review
If you opt for a
traditional review, a member of the RO appeals team reviews the decision on
your claim to determine if it was processed correctly; if it was, the RO will
issue you a Statement of the Case (SOC). An SOC lists the applicable laws and
regulations related to that decision, all the evidence that was considered in making
the decision and a detailed explanation of the decision VA made.
De novo Review
A de novo review
is your other option. de novo, which means “new,” or “fresh look,”
is a Latin term used by lawyers. In a de novoreview, a DRO,
who is a senior-level, highly experienced claim processor, looks at all the
evidence of record (your entire claims file, including any new evidence you’ve
submitted). The DRO can grant your appeal, deny your appeal and issue an SOC,
or order additional development (such as a new medical exam or a request
for additional medical records), if warranted.
Unless the RO grants
the full benefit you are seeking, you will receive an SOC. This means EVEN if
the RO grants your claim, you may receive an SOC, allowing you to continue the
appeal. For instance:
- If you were appealing service
connection for tinnitus (ringing in the ears) and the RO granted this on
appeal at 10 percent, the RO appeals team will ONLY issue a rating
decision since 10 percent is the highest rating you can receive for
tinnitus. This means the appeal has been granted in full. You will not
receive an SOC.
- If you were appealing VA’s
10-percent rating for arthritis in your lower back because you believe you
should be rated higher, but the RO appeals team disagrees and continues
your 10-percent rating, you will receive ONLY an SOC.
- If you were appealing VA’s 10-percent
rating for arthritis in your lower back because you believe you should be
rated higher, and the RO appeals team agrees and increases your rating to
20 percent, you will receive BOTH a new award decision explaining why VA
increased your disability rating AND an SOC detailing how VA arrived at
its decision, including why you were not entitled to a rating higher than
20 percent.
You have 60 days from
the date the SOC is mailed to you to file a VA Form 9, Appeal to the
Board of Veterans’ Appeals, if you wish to continue your appeal to the
Board. Any time you submit more evidence after the SOC or before the Form
9, VBA must conduct another review of the case and issue another SOC – this one
called a supplemental statement of the case (SSOC) that includes the additional
evidence – or a rating decision, if the additional evidence allows VBA to grant
the appeal. This must be done each time you submit new evidence after the
SOC. I have seen appeals with four or five SSOCs. Keep in mind, each time
you submit new evidence it triggers a new review. It’s like starting all
over again in the appeals process. Each new SSOC can add up to 400 days
to the appeal, so my best advice is, submit all available
evidence to support your appeal when you file your NOD.
On the Form 9, you can
request an optional hearing before a judge at the Board, who will decide your
appeal. A hearing is notrequired and will delay a final
decision, but if you want a hearing, you can choose a video-teleconference
hearing, a travel board hearing at your local RO, or an in-person hearing in
Washington, D.C.
If you want a hearing,
your best bet is to opt for the video-teleconference hearing, since it can be
scheduled much quicker than other types of hearings. This is because you don’t have to travel
to Washington, D.C. and you don’t have to wait for a judge to travel to your
RO. You still get the benefit of representation and talking to a judge
face-to-face – though virtually, like on Skype or on FaceTime.
Once you submit your
Form 9, the RO appeals team reviews your appeal to ensure all actions were
completed and that it is ready to go to the Board. Once ready, the local RO
will certify and transfer your appeal to the Board in Washington, D.C.
In my next piece, we
will discuss the appeals process at the Board. But in the meantime, I am happy
to answer questions about the RO appeals process in the comments section.
Please remember, we cannot answer questions on your specific appeal.
The appeals process: Appeals at the Board of Veterans’
Appeals
There is a perception that a lot of the regional offices’
decisions are appealed to the Board of Veterans’ Appeals. This is not
accurate. Historically, only 4 percent of all claims the Veterans Benefits
Administration (VBA) decides are appealed to the board. The perception probably
comes from the increasing number of pending appeals, but that growth is
explained by looking at the math. In the last four years, VBA has completed
more claims than ever before in its history. Because VBA has completed so many
more claims, the volume of appeals has also increased, even though the rate of
appeals of VA decisions has remained steady.
If after receiving a statement of the case (SOC) from the
regional office you still are not satisfied with the regional office’s
decision, you can file a VA Form 9, Appeal to the Board of
Veterans’ Appeals, within 60 days from the date the SOC is mailed.
Appeals
at the Board of Veterans’ Appeals
Once the board receives your appeal, it assigns a docket
date based on the date VA received your Form 9. This date is important: under
the law, the board must work appeals in docket order. Currently, the median, or
middle, docket date of appeals the board is working is July 2014. Some newer appeals can be pushed to
the front of the line: those from older Veterans and survivors, those who are
terminally-ill or those who have documented financial hardship, etc. It’s
important to know that if the board remands (returns) your appeal to the
regional office to gather more evidence, you won’t lose your place on the
board’s docket.
Just like in the regional offices, several Veterans service
organizations are located at the board. If you choose not to have a hearing
before the board, your representative will write a legal argument on your
behalf. The board will consider that argument when it conducts its own de
novo review of your claim. If you choose to have a hearing, your
representative will help you explain your case at that hearing. VA will
transcribe the hearing and put it in your file. The board can do one of three
things: grant your appeal, deny your appeal or send (remand) it back to the
regional office for more action.
If you disagree with the board’s decision, you may pursue an
appeal to the Court of Appeals for Veterans Claims (CAVC).
If the CAVC denies your appeal, you can appeal to the U.S. Court of Appeals
for the Federal Circuit. If you lose the appeal there, you can
petition the U.S. Supreme Court for review. The Supreme Court grants review in
very few appeals. Generally, the Court of Appeals for the Federal Circuit and
the U.S. Supreme Court review only legal matters in an appeal, not agency
decisions.
In
my next piece, we will discuss what happens when the board remands your appeal.
But in the meantime, I am happy to answer questions about the process at the
board in the comments section. Since I don’t work at the board, I have asked a
friend who does work there to help me answer your questions. Please remember we
cannot answer questions on your specific appeals.
The appeals process: When an appeal is remanded
Just like in the
federal court system, where a superior court has the ability to remand — or
send back — an appeal to a lower court for another look, the Board of Veterans’
Appeals has the ability to remand a case back to the regional office.
Remands
While the Board has
the ability to remand, it uses the remand differently than a typical court
system. In a typical court system, a higher court usually remands a case when a
lower court interprets a law incorrectly. In VA’s circular system, appeals
are remanded for many reasons. A remand may be necessary if there has been a
change in law, a worsening of a disability on appeal or the Veteran introduces
new evidence or theory of entitlement at the Board.
Typically each time
one of these things happens, a rule of law called Duty to Assist (DTA) is
triggered. DTA is an obligation VA takes very seriously. It means VA has to
help you develop your claim. Often, this means scheduling you for another exam,
gathering records on your behalf or giving you an opportunity to comment since
a law change. About two-thirds of the Board’s remands are for reasons that
arose after VBA finished processing the appeal and sent it to the Board.
Appeals
are remanded for many reasons…if there has been a change in law, a worsening of
a disability on appeal, the Veteran introduces new evidence or theory of
entitlement at the Board or if the regional office did not process your claim
correctly.
Appeals are also
remanded if the regional office did not process your claim correctly – usually
the result of insufficient evidence gathering. While the number of these
avoidable remands has declined considerably in recent years, we continue to
work to improve our processing accuracy.
If the Board remands
your appeal, the judge will lay out clear steps which the regional office must
complete before issuing another decision on your appeal. After completing the
required steps, the regional office will make a new decision that either
continues the prior decision or grants your appeal. If it continues the prior
decision, you will receive a supplemental statement of the case (SSOC) and your
appeal will be returned to the Board for a final decision. The Board reviews
your case again and renders another decision. Because of updates to laws and
evidence, this remand cycle may happen more than once.
In my last post, I told you that if the Board
denied your appeal, you could appeal within 120 days to the U.S. Court of
Appeals for Veterans Claims (CAVC). If CAVC remands your appeal back to the
Board, the Board may issue a remand back to the regional office to follow
through on any development actions the CAVC has instructed of VA.
In my next post, I
will review all the tips covered in the last four pieces on the appeals
process. As always, I look forward to your comments.
