The appeals process: Appeals and claims are as different as apples and oranges

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.

Under those laws, VA grants service connection and pays disability compensation (if warranted) for a disability when evidence shows three things: injury or illness in service, a current disability and a link — usually medical evidence — connecting the two. The laws also allow for service connection for conditions caused or aggravated (permanently worsened) by conditions that are already service connected.

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

In my previous two posts, I discussed the difference between a claim and an appeal and the appeals process that occurs at the VA regional office. If you have not read those posts, I suggest you start with those, as this post builds on those.

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

In my previous three posts, I discussed the difference between a claim and an appeal, the appeals process that occurs at the VA regional office and at the Board of Veterans’ Appeals. If you have not read those posts, I suggest that you do, as this post builds upon those.

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.