The Appeal Process

Today we will begin a series on Appeals.  There will be a total of 4 posts concerning the Appeals process.  The information was originally written by Catherine Trombley,a public affairs specialist for the Veterans Benefits Administration.  Today's post will define what an appeal is and the first steps in the process.  Please feel free to leave any feedback and questions you may have.  Thank you for reading this blog and I invite you to follow us so that you will be made aware of when a new blog has been posted.

Thank you.  TTYL

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 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 firsthand 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 provide the best information in the quickest amount of time.

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.

Tomorrow's post will deal with the appeal process at the Board level.