The new VA appeals process explained by Matt Hill, grab a cup of coffee and a notepad, as to be expected from VA, it’s not a simple straightforward line.
The VA appeals process is going through its biggest change since the 1980s. In 2017, Congress passed the Veterans Appeals Improvement and Modernization Act. This act takes apart the current appeal system and replaces it with a new process aimed to improve the experience for all involved in the process.
First, let’s recap what the system currently looks like. Ready?
Claimant files a claim. The VA regional office, RO, sends VCAA letter. After that, RO mails notice of its decision. Claimant files notice of disagreement. The claimant must file NOD within one year of mailing of rating decision.
The claimant has the option of requesting a DRO review, but the claimant must request DRO review within 60 days of VA letter offering it. If the claim is denied, VA mails a statement of the case, SOC. Note, if the VA grants the claim, then you go back to the beginning of this process. The claimant has 60 days to file the Substantive Appeal VA Form 9 from the date of the SOC or a year from the date of the rating decision, whichever is later.
Board of Appeals decides the case, appeals to the CAVC within 120 days. Of course, if a claim is granted at any point, then it goes back to the beginning of this cycle, and the appeal process starts all over again. Ugh.
Let’s take a brief look at what stays the same and what is changing. Then we can talk about how the process works.
There will still be a rating decision after every claim is filed. A claimant will still have the opportunity to have a more seasoned adjudicator review the decision in the regional office. The claimant can still appeal to the Board of Veterans’ Appeals.
In the current system, when a veteran is dissatisfied with a decision and wants to preserve the date of the claim, he has only one route: file an NOD. Forgot to file a necessary document? File an NOD. Missing a piece of evidence? File an NOD. The VA made a mistake of law? File an NOD.
Veterans Appeals Improvement and Modernization Act
Now, when a veteran files a new claim, the VA will issue a rating decision that must contain the following: what issues were decided, summary of evidence considered by the VA, summary of applicable laws and regulations, identification of findings favorable to the claimant, explanation of why claim was denied, explanation of how to get evidence used in making the decision, and identification of criteria that must be satisfied to grant service connection or the next higher level of compensation. After this rating decision, you have one year to take action. You are to appeal for a higher review at the RO, file new evidence or file an NOD to go to the Board of Veterans’ Appeals.
Higher Level Review
You have one year from the initial claim to seek this route. This lane allows for a quality check on the original opinion while still at the VA regional office. Now, you cannot submit additional evidence or request a hearing here. The review is de novo, which is fancy Latin meaning review without giving weight to the prior decision. If the decision is favorable, your original claim date is preserved. If it is unfavorable, you have an option to file a supplemental claim or to file an NOD to appeal to the board.
Welcome to the new evidence lane. You have one year from the date of your decision to file additional evidence. Under the new law, this is now referred to as a supplemental claim. In this lane, you may submit additional evidence that is new and relevant. Upon receipt of your new evidence, VA will attempt to make a decision within 125 days. Your effective date, the day from which the VA will pay your benefits, will be the day you file the first claim.
Once the adjudicator makes a decision, you must ask yourself, are you satisfied with this decision? At this point, you get to choose from the three options again: one, as you’ve already done, you can submit additional evidence within a year and preserve the date of your claim; two, you can request a higher level review; or three, board review lane.
Board Review Lane
This is where you file an NOD and your case moves from the regional office to the Board of Veterans’ Appeals. Here, there will be three lanes to choose from: one, fully developed appeal, a claim that is ready for decision by the BVA and there is no further evidence to submit; two, hearing request with the chance to submit additional evidence; or three, request to submit evidence but not hold a hearing. If the decision is favorable, your original claim date is preserved. If it is unfavorable, you have an option to file a supplemental claim within a year, or you can file an appeal to the Court of Appeals for Veterans Claims. You only have 120 days to file this appeal though.
File an appeal with the CAVC and win, and your original claim date is preserved. If you do not prevail, then you have a year to file a supplemental claim. Should you win after that, you still preserve your original claim date.
Reprinted with permission from Hill and Ponton Disability Attorneys
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