Challenging Unfavorable Decisions with a Claim for Benefits (Appealing a Denial)
For more detailed information about unfavorable decision and appeals click on the applicable subject below
- What constitutes an unfavorable or bad decision for veterans benefits?
- What led Congress to make a major change in the appeals process?
- What is the new "Modernized Review System?"
- What are the advantages and disadvantages of the new review system?
- What are legacy claims and legacy appeals?
- How can you receive help navigating the new review system?
The entire appeals process was changed on February 19, 2019 due to legislation passed in 2017 known as the "Veterans Appeals Improvement and Modernization Act of 2017."
We include below a brief introduction to the new process which is called by VA the "Modernized Review System." The links above go into more detail on this new system, how it came about and how it works.
Because there were hundreds of thousands of claims in the system prior to February 19, 2019, and there were likewise several hundred thousand appeals in the system prior to February 19, 2019, these particular claims and appeals are subject to the old system. These are called "legacy claims" for any claims in the system prior to February 2019 and "legacy appeals" for any appeals in the system prior to February 2019.
When decisions on legacy claims are issued after February 2019, these decisions become subject to the new rules and cannot be appealed under the legacy appeals system. When pending appeals have been certified under the old rules after February 2019 either through a "statement of the case" or a "supplementary statement of the case" the claimant has the option of electing either the old system under legacy appeals described below or can opt into the new review system.
We discuss in more detail further below the legacy system under the topic entitled "About the Legacy Appeals Process." Remember, everything that follows as discussed under the section on legacy claims and appeals is no longer applicable for any decisions issued after February 2019 or for any appeals after this date as well.
About the New Process for Appeals and Review
If you disagree with a VA decision, you can choose one of the following review options to continue your case. If you aren't satisfied with that review, you can try another option. You have 1 year from the date on your decision to request a decision review, unless you have a fiduciary claim or a multiple party claim. See if one of these rare situations applies to you.
Decision Review Options
- Add new and relevant evidence (file a Supplemental Claim)
- Ask for a new look from a senior reviewer (request a Higher-Level Review)
- Appeal to a Veterans Law Judge (request a Board Appeal)
Add New and Relevant Evidence through a Supplemental Claim
You can file a Supplemental Claim within 1 year of a decision if you have new evidence.
When you choose to file a Supplemental Claim, you're adding new evidence that supports your case or identifying evidence for review. A reviewer will look at all the evidence and determine whether it changes the decision. You must submit evidence that VA didn't have before that supports your case. VA's goal for completing Supplemental Claims is 125 days.
Ask for a New Look from a Senior Reviewer through a Request for a Higher-Level Review
When you choose to request a Higher-Level Review, you are asking for another review of the same evidence. A senior reviewer will take another look at your case and determine whether the decision can be changed based on a difference of opinion or an error that VA made.
Learn how to request a Higher-Level Review
You can't submit any evidence with a higher-level review. However, you or your representative can speak with the reviewer on the phone. You can tell that person why you think the decision should be changed and identify errors. VA's goal for completing Higher-Level Reviews is 125 days. A review may take longer if VA needs to get records or schedule a new exam to correct an error.
You can request a Higher-Level Review of an initial claim or Supplemental Claim decision. This option isn't available after a previous Higher-Level Review or from a Board Appeal. On the other hand a subsequent higher-level review could be available if a new supplemental claim were submitted based on new evidence as a result of a previous higher-level review or a board appeal and the new supplemental claim resulted in an unfavorable decision.
Appeal to a Veterans Law Judge by Requesting an Appeal to the Board of Veterans Appeals
A judge at the Board of Veterans' Appeals in Washington, D.C., will review your case. The Board's goal for deciding appeals with no new evidence and no hearing is about a year. You have the option to add new evidence that a judge will review. You also have the option to request a hearing with a judge, either in person in Washington, D.C., or by video conference at a VA location near you. The Board will take longer to decide your appeal if you submit new evidence or request a hearing.
You can request a Board Appeal after an initial claim, Supplemental Claim, or Higher-Level Review decision. You can't request 2 Board Appeals in a row. If you disagree with the Board's decision and have new and relevant evidence that supports your case, you can file a Supplemental Claim. You can also appeal to the U.S. Court of Appeals for Veterans Claims.
About the Legacy Appeals Process
Any unfavorable adjudicative decision by the Department of Veterans Affairs (VA) may be appealed to the Board of Veterans Appeals, and if the denial continues, to the U.S. Court of Appeals far Veterans Claims (previously called the Court of Veterans Appeals). An adjudicative decision is one which establishes or denies eligibility to a VA benefit, such as service connection for a disability, eligibility for dental treatment, monthly rate of education assistance, waiver of overpayment, etc.
A decision that a veteran should be given one type of medical treatment rather than some other is not an adjudicative decision, and is not appealable through these channels. A proposal to change a benefit (i.e. to decrease a SC rating) is also not an issue for appeals action.
An appeal is defined as a timely filed written Notice of Disagreement from a VA decision and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal.
A claimant has one year from the date of the letter notifying him or her of the denial of a benefit to submit a Notice of Disagreement; otherwise, that decision becomes final.
Notice of Disagreement
The only requirements for a Notice of Disagreement are that
- it must be in writing, that
- it must be addressed to the activity or operating element of VA which made the adverse decision, and that
- it must be worded so that it can be reasonably construed as disagreement with the decision and a desire for appellate review.
If multiple issues were decided and the claimant disagrees with some but not all of the decisions, the Notice of Disagreement should specify which decisions are being contested. If it is not clear which decisions are being disagreed with, the claimant may be asked to be more specific.
A Notice of Disagreement and Substantive Appeal may be filed by the claimant or representative, by the claimant's next friend, or, if the claimant is under a disability by a court, by a fiduciary.
A Notice of Disagreement may be withdrawn in writing at any time prior to filing the Substantive Appeal, and a Substantive Appeal may be withdrawn in writing at any time before BVA promulgates its decision. Either the claimant or the representative may make the withdrawal, except that the representative may not withdraw either a Notice of Disagreement or a Substantive Appeal filed by the claimant, without the express written permission of the claimant.
Initiating the Process
- On receipt of a valid Notice of Disagreement, the responsible VA activity (called the Agency of Original Jurisdiction) is obliged to review the decision for correctness and to determine if any further development is necessary, and if so, to do it. After this review, if the benefit being sought is still not granted,
- VA will then furnish a Statement of the Case to the claimant and his or her representative, if any. If more than one VA element was involved in the unfavorable decision, the activity, which notified the claimant of the denial, has primary responsibility for the Statement of the Case. The Statement of the Case will contain (a) a recitation of the evidence considered in the decision, (b) a recitation of the laws and regulations applicable to the decision, (c) a statement of the decision, and (d) a discussion of the reasons and bases why the rules applied to this evidence did not permit the benefit being sought to be granted.
- The claimant then has 60 days or the remainder of the one-year appeal period, whichever is later, to submit a Substantive Appeal (VA Form 9, Appeal to the Board of Veterans' Appeals, or equivalent written statement) on the issue(s) covered; otherwise, the decision becomes final.
Supplemental Statement of the Case
A Supplemental Statement of the Case will be furnished if additional evidence is considered after the original Statement of the Case has been sent; if an amended decision has been made granting part but not all of the benefit(s) being sought; if there was any material defect in the original Statement of the Case. (A new Statement of Case must be issued when new issues are raised.)
The Supplemental Statement of the Case has the same elements as the original Statement of the Case. If the appeal period had not expired when the additional evidence was considered or when the additional issue was disagreed with, the claimant and representative (if any) will be furnished another VA Form 9 and allowed another 60 days (or to the end of the appeal period, whichever is later) for response.
The Substantive Appeal must make specific contentions relating to errors of fact or law made by VA in reaching the decision(s) being appealed. To the extent feasible, it should relate to specific points in the Statement(s) of the Case.
Once the Substantive Appeal has been returned, the appeal has been "perfected," and the claimant is not required to take any further actions except for cooperating with any additional development determined to be necessary.
The Agency of Original Jurisdiction will again review the evidentiary record for completeness and to make sure that all due process requirements have been observed. If these reviews result in a Supplemental Statement of the Case, the claimant and representative (if any) will be given 60 days to make any further response desired. However, once the Substantive Appeal has been submitted any further response is optional and is not required to continue the appeal. If there is a representative, the representative will be invited to make a final argument. The Agency of Original Jurisdiction will then certify that the appeal is ready for review by the Board of Veterans' Appeals (BVA), and forward the complete record to the Board.
Claim Sent to Board of Veterans Appeals
The claimant and representative will be notified when the appeal is received at BVA, and will be allowed a period of up to 90 days to submit additional evidence or request a personal hearing (if not already done), or to request a change in representation. (Note that most veterans service organizations have strict rules regarding accepting an appointment as representative during an ongoing appeal.)
- If the Board determines that the appeal is not ready for review, they will remand it to the Agency of Original Jurisdiction for additional development, observance of due process requirements, etc., as instructed.
- If the Board determines that the case requires special expertise or involves obscure legal issues, the Board may request an independent (outside VA) expert medical opinion or a legal opinion from VA General Counsel.
- If they determine that the appeal is ready for review, they will proceed.
Whether the Board's final decision grants the appeal or upholds the denial, the claimant and representative (if any) will be advised in writing of the Board's decision.
The notice will include a listing of the issue(s) considered; findings of fact and law; a recitation of the evidence considered; and the reasons and bases for the decision as to each issue. The notice will also include notice of appeal rights for the Court of Appeals for Veterans Claims, including instructions on where and how to file an appeal to the Court and the time limit for filing an appeal.
Additional Evidence to the BVA
Additional evidence may be submitted by or for the claimant at any point between the time VA first notifies the claimant of its decision and the time BVA notifies the claimant of its decision. Remember, however, that submission of additional evidence does not extend the time limits for initiating or completing an appeal.
Discretion must be exercised when requesting reconsideration of a decision based on additional evidence—if there is any question at all whether the new evidence can be reviewed, a notice (of continued denial) sent out, and the Notice of Disagreement filed before the one-year period from the date of the original notice elapses, it is better to word the request for reconsideration as an intent to appeal if the denial is continued. The claimant's appellate rights must be protected, even at the cost of some administrative inconvenience to the Department of Veterans Affairs.
After the appeal has been forwarded to BVA and the 90-day period has elapsed, any additional evidence submitted may not be reviewed by BVA until it has been first reviewed by the Agency of Original Jurisdiction, unless a waiver of such review is filed by the claimant or representative. Such a waiver must be in writing and must accompany the evidence being submitted. If no waiver is given, BVA will remand the appeal back to the Agency of Original Jurisdiction for review of the additional evidence and preparation of a Supplemental Statement of the Case, if the claim remains denied.
Personal Hearing before the BVA
A claimant may request a personal hearing at any point in the appeal up to the time BVA issues its decision. The hearing may be held before the Board sitting in Washington, D.C.; before a traveling section of the Board at the Department of Veterans Affairs Regional Office; or by teleconference, with the claimant at a designated VA station and the Board member in Washington, D.C. A local hearing may also be requested to be held before the Decision Review Officer.
Right to Further Appeal
Following an unfavorable BVA final decision, an appellant may file an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) within 120 days of the date of the BVA decision. This appeal must be sent directly to the court, NOT to BVA or to any VA office. The time limit for filing may not be extended or waived. There is a filing fee, which can be waived. Only the appellant or representative may appeal a BVA decision; the agency may not appeal. The court may consider only the issues, evidence and arguments that BVA reviewed in its decision. No new evidence may be submitted and no new arguments or issues may be raised.
The court will uphold BVA if there is any reasonable basis for its decision, unless the court finds an error of fact or law or finds that BVA's decision was arbitrary and capricious. Either the appellant or VA may appeal the court's decision to the U.S. Court of Appeals for the Federal Circuit.
Request for Reconsideration
A claimant or representative may request reconsideration of a BVA decision at any time upon
- allegation of error of fact or law;
- discovery of new and material evidence in the form of relevant service records;
- or allegation of fraud or misrepresentation of evidence which materially influenced the Board's decision.
However, if an appeal has been filed with the court, BVA may not reconsider its decision unless the court gives specific permission.
Decision Review Officers
One of the most significant changes to the traditional appeals process is the creation of the "De Novo" review. Webster's defines "De Novo" as Latin for "anew, afresh, again, from the beginning." That is just what the new regulation, 38 CFR 3.2600, "Review of benefits claims decisions," does. It offers a new appeal procedure at the Regional Office level that may result in a faster resolution of cases and cut down time-consuming traditional appeals.
As of June 1, 2001 a claimant can elect to have a Decision Review Officer (DRO) take a fresh look at the issue(s) on appeal by making a request for DRO review on the same statement as the Notice of Disagreement (NOD). The VA will also advise the claimant of the DRO option if the NOD did not specifically request this procedure.
A claimant then has 60 days to accept the DRO review in writing, before the appeal is reviewed under the traditional process (the 60 day time limit can not be extended).
The VARO will appoint a DRO
- to look at all the evidence on record,
- give no deference to the previous decision, and
- decide if further development or a personal hearing would be in order.
The DRO may consult with the accredited representative to discuss the issue(s) on appeal, any further development or evidence needed, conduct personal hearings, or to determine if the appeal can be satisfied by a decision that does not grant all issues (i.e. a veteran will accept a higher scheduler rating even though a claim for Individual Unemployability benefits remains denied).
The DRO is limited to making decisions that are in keeping with a previous VARO decision or one that is favorable to the claimant.
Should the DRO uphold the prior decision or if the claimant is still dissatisfied with the new decision, the appeal is returned to the traditional BVA process.
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