by Matthew Donald, Esq., LWP Director of VA Services
To Appeal or Not to Appeal, That is the Question.
The starting block for the VA for the appeals process is the decision from the VA on the claim you submitted. In other words, you can’t file an appeal until you have a decision. By contrast, in many states, if you file a Medicaid claim and it isn’t acted upon promptly, you can file an appeal of sorts asking for a fair hearing in an effort to expedite the Medicaid claim. Not so with the VA. You must have a decision from the VA on your claim to begin to file either a formal or an informal appeal.
Ok, I’m ready to take on the VA!
Hold your horses! Before you decide to take on the VA through the appeals process you may want to submit a reconsideration which is sometimes referred to as an “informal appeal”.
A request for reconsideration is simply a VBA Form 21-4138, Statement in Support of Claim, in which the claimant explains why he or she feels the decision by the VA is incorrect. You should submit any additional evidence you have along with your VBA Form 21-4138. For example, if the VA denies your claim because it says it did not receive a VBA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. In this case you would not want to appeal but rather simply submit the VBA Form 21-4138 and a copy of the VBA 21-2680.
What if the VA decision is sort of good but sort of bad?
A decision is a decision, and that’s good because it lays the grounds for you to proceed with an appeal if you want. If the VA issues a decision that approves your claim in part, but not necessarily to the extent you thought it should, you can appeal just that part of the decision. However, buyer be warned! When appealing just that part of the decision, be aware that the VA will only look at that part of the decision but it could adversely impact your claim.
For example, let’s say you think your client should be entitled to Aid and Attendance at a rate of $2000/month but the VA only grants $1900/month. You decide to submit an informal appeal, but the evidence shows that the claimant should really only be entitled to $1800/month. The VA can and will respond with a decision that reflects what the VA believes to be the correct benefit, and it can be less than what your original approval indicated.
There are no limits to the number of requests for reconsideration that you can file but you must submit new evidence or eventually the VA will issue what it calls “A final decision”.
That’s not my situation. I need to file a “REAL” Appeal?
So you have either exhausted your requests for reconsideration, or you feel like the VA has gotten this entirely wrong and you need to have it reviewed by someone other than the case review officer.
At this juncture you have up to one year to submit a VA Form 21-0958, Notice of Disagreement (NOD). When filing the NOD you have two choices. You can ask to have your appeal reviewed by a Decision Review Officer (DRO) or to have your case decided using the traditional appeals process. If you do not choose to ask for a DRO at the time of filing your NOD, you will receive notice that you have the right to have a DRO decide the case. You will have 60 days from the issue of that notice to elect to use a DRO instead of following the traditional informal appeals route.
What’s the difference between a DRO and the traditional appeals process?
Both the DRO and traditional appeals processes begin with an NOD. It is with the filling of an NOD that an attorney may begin to charge fees for his or her representation of the claimant. For a better understanding of what fees may be charged please refer to VA Form 21-0958, Notice of Disagreement (NOD).
If you chose to use a DRO, which in most cases is a better option for reasons we will explain later, you will have your case decided by an individual who has not previously seen the case and he or she will review the case “de novo” which is Latin for “from the beginning.” As a point of clarification, the review by the DRO is only limited to the issue(s) and evidence submitted by the claimant either in the original claim, subsequent requests for reconsideration, or the NOD. Also note that the DRO cannot overturn any favorable decisions previously issued by the VA without a clear and unmistakable error which is a very high burden of proof for the DRO.
The DRO will take all of the evidence and then make a decision on the case and issue his or her decision. If the decision is favorable, no further action is required. If the decision is unfavorable, a statement of claim (SOC) will be issued and the claimant must then decide if he or she wishes to pursue the appeal further.
If the claimant chooses not to utilize the DRO process and pursues the traditional appeals process, the VBA (Regional Office or the Pension Management Center – depending on where the claim was filed) will review the record again to include any new evidence that was submitted with the NOD and issue a SOC. It is worth noting that an SOC is simply a summary of the evidence along with a reference to the controlling rules and regulations and a reason for the decision made by either the DRO or the VBA.
So now what? I lost at the VBA or DRO.
So you either weren’t as successful as you had hoped at the DRO or VBA level but you still think you have a good case or your claimant wants to “fight tooth and nail!”.
Up to this point you have been involved in what is known as the informal appeals process which includes requests for reconsideration, the DRO process, or the VBA review process. Once you receive a SOC, you have 60 days to decide if you will ask to have the claim appealed to the Board of Veterans’ Appeals. To exercise this right most people chose to file a VA Form 9, Appeal to Board of Veterans’ Appeals (Board).
While you wait to find out if the VBA is going to certify your claim to go to the Board, you can submit additional information. If you do submit additional information, the VBA will issue additional decisions based on the information you have submitted and issue a supplemental statement in support of case (SSOC). Additionally at this point you have the option of having a formal hearing before a Veterans Law judge to determine your appeal and present any new evidence you may have.
If you have decided to wait for your case to be certified by the VBA to the Board, then you will have the option of an in-person hearing in Washington, DC or a hearing via video teleconference. During the hearing you can offer additional evidence and testify. The Judge may ask some clarifying questions, but you won’t be cross examined. You should note that the Judge will not make a decision at the hearing. It should be noted that the Board reviews everything de novo, just like the DRO did above.
After the hearing the Judge will do one of three things, grant your claim, deny your claim, or remand your case. If the judge grants your case you will receive a decision from the VBA. If the judge remands your case it is typically because the Board needs additional evidence before making a decision. If that is the case, the VBA collects the evidence in question and resubmits the case to the Board for decision.
Lastly, the judge can deny your claim. If that happens you can: file a new claim, file a motion asking for reconsideration, file a motion asking the Board to review because of a clear and unmistakable error, or file a Notice of Appeal to the US Court of Appeals for Veterans Claims.
This seems like a long drawn out process.
Yes, yes it can be. According to a chart issued by the VA, the average process times in 2016 are as follows:
From VBA decision to issuance of SOC – 480 days
From issuance of SOC to certification to the Board – 644 days
From certification to the Board to docket for the Board – 288 days
From hearing by the Board to Board issuing its final decision – 248 days
If you are doing the math on that it comes out to over 4.5 years from the decision by the VBA to the decision by the Board. There are a couple of good best practice tips you can take from this with the first one being, make sure you have your claim truly fully developed before you submit it. Many claims that make it to the Board are remanded for additional evidence.
Strongly consider using a DRO instead of immediately going to the traditional appeals route. Generally speaking, if you decide not to use a DRO, the VBA (probably the person who originally denied your claim) is simply going to look at the evidence submitted, “rubber stamp the case” and issue a SOC. At least with the DRO you get a de novo review. In our experience, the DRO process has been the most expeditious way to get the case decided and most often has been favorable to our claimants.
