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Can I Appeal My VA Benefits Decision?

two people reviewing veterans documents at a table


The process of appealing a VA benefits claims can be frustrating for veterans. They may feel that the rating they have been given does not reflect the severity of their injury or illness, or that they have been improperly denied service connection. However, it is important to note that appeals are filed every day, and many veterans are successful in securing service-connection or a better rating from the VA. 

Rating decisions issued prior to February 19, 2019, are known as being under the “legacy” system. Although there are still “legacy” claims out there, most appeals are not coming from rating decisions issued before February 19, 2019, meaning that they fall under the “Appeals Modernization Act or “AMA.” Under the AMA, you can choose from 3 review options, sometimes called “appeal lanes” to challenge the VA’s decision.

The Process

The process of applying for benefits begins with an application. They can also send you for a claim and pension exam, or “C&P” exam for short, which will determine two things; the severity of the disability and whether that disability is related to service. Alternatively, when something is presumptively linked to your service, for example, Agent Orange, there may be no need to check whether it is related. Once an investigation has been done, you will receive documents, one which contains the r

Appeals under the Legacy System

If you are not happy with the rating decision that the VA has made, you have the option to file a Notice of Disagreement on a VA-Form 21-0958. Please note that this form has gone away, and the form now known as a Notice of Disagreement is totally different. The NOD had to be done within one year of the date on the Rating Decision, because if you did not appeal within that one year, you might lose the effective date which could lead to you not getting all the back pay that you were entitled to. Filing this notice informed VA that you disagreed with their decision and would like to appeal. On that form, you had two choices of how you wanted your appeal heard: either review by a Decision Review Officer, also known as a “DRO”, or appeal directly to the Board of Veterans Appeals, also known as the BVA.

If you chose a DRO, the VA would have your file reviewed by an examiner with a little more experience, and that examiner might order new exams or order additional records. Unfortunately, his process could take years, and it was never clear just when you would get a decision, or if they were accepting new evidence.

When the DRO made a decision, or if you chose to appeal directly to the BVA, the VA would issue what was known as a “Statement of the Case,” or “SOC.” The SOC was like a rating decision with a lot more details, and a lot of boilerplate language about the process. A thirty-page SOC might only contain 2-3 pages of useful information. Once a Veteran received an SOC, they had 60 days to file a VA Form 9 to appeal if to the BVA, where they could choose to have a hearing in front of a Veterans Law Judge. Before it got to the BVA, however, the VA would have to “certify” the appeal using a Form 8.

To make things more complicated, however, if the VA received new information after a Statement of the Case but before it went to the BVA, they would issue a “Supplemental Statement of the Case,” which a Veteran also had to respond to, but with different timelines.

Filing your Notice of Disagreement in a timely manner helped expedite the appeals process. Make sure to submit all relevant evidence to support your case. If you have additional evidence to submit, it is beneficial to include it when filing your Notice of Disagreement. However, you can submit additional evidence up until the time a decision is made.

Appeals Under the AMA

The AMA changed the appeals process quite a bit. If you received a Rating Decision you disagreed with, you could appeal your claim within one year using one of the three “lanes:”

A Supplemental Claim is used if you have new and relevant evidence for your appeal. A Higher-Level Review, on the other hand, was just a request to have your case reviewed by a more experienced VA employee. The interesting thing about the AMA is that you can go back and forth between Higher Level Reviews and Supplemental Claims multiple times. For instance, a Veteran can file new and relevant evidence with a Supplemental Claim, and if they do not agree with the VA’s decision, they can file a Higher-Level Review. If they do not like that decision, they can file another Supplemental Claim with more new evidence.

Likewise, if you choose to appeal to the BVA, you have three choices inside that option

  • A direct appeal, where the BVA’s reviews are based on the law and the evidence already in the claims file 
  • An evidence submission docket where you have 90 days from the date that you appeal to submit new evidence through an independent medical exam, lay statements, buddy statements or additional medical records.
  • An in-person hearing but not all cases require in-person hearings. This can also be quite a lengthy process

If the BVA denies your claim, you can submit another Supplemental Claim. If the BVA is wrong on a point of law, or their analysis of the evidence was flawed, you can appeal even higher to the Court of Appeals for Veterans Claims. While the case is pending, you can also check the decision review or claims status on the VA’s official website.

The AMA also simplified deadlines. You can use an appeal lane within one year of the previous decision, BUT you only have 120 days from the date of a BVA decision to file an appeal to the Court of Appeals for Veterans Claims.

If you fail to appeal your decision within one year, you can still “reopen a claim” using a Supplemental Claim with new and relevant evidence, but you will likely not get the earlier effective date, and potential lose out on backpay. There may be certain rules you can take advantage of in certain circumstances to get that earlier effective date, such as a request to reopen a previously denied claim, which uses the same form as the Supplemental Claim. You can also file a Motion for Revision based on Clear and Unmistakable Error (CUE). 

WARNING: Clear and Unmistakable Error is EXTREMELY RARE. It is more than just a disagreement, or a bad C&P exam. Getting a CUE motion granted is incredibly difficult and requires the right set of facts.

There are many ways in which veterans can increase their chances of success when appealing a VA decision. Completing paperwork thoroughly and promptly is important, as is having experienced legal representation.

The key to all appeals is to get the claims file and as an accredited VA disability benefits attorneys, we can get your claims file, or “C-File” through the veteran’s benefits management system, or VBMS. Veterans Service Organizations, or “VSOs” also have this same access. Without this access, most Veterans must file a Freedom of Information Act (FOIA) to get the entire claims file.

 

If you feel you are facing an uphill battle with your appeal, you can contact a seasoned Veterans Advocacy lawyer at the Law Office of Andrew P. Gross.

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