What are Options for a VA Compensation Claim with a Bad Decision?
If you disagree with a VA decision for Compensation, you can choose one of three review options to continue your case. If you aren't satisfied with that particular review option, you can try another option.
Here are the options for challenging an unfavorable or bad decision
- submit new and relevant evidence
- ask for a new look from a senior reviewer
- appeal to a veterans law judge
Please note that we go into significantly more detail on how this process works under the tab on this website entitled "Unfavorable Decisions." Information here is a simple introduction to a more complex process.
Submit New and Relevant Evidence
You can choose to file new evidence through what VA calls a "Supplemental Claim." You are 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 can file a Supplemental Claim within 1 year of a decision if you have new evidence. If you go beyond 1 year and then submit new evidence you will lose your original filing date and you can no longer use a supplemental claim to file that evidence. You must file a brand-new application which carries with it a new effective date.
You must submit evidence that VA didn't have before that supports your case. You must use the appropriate supplemental claim form for your new evidence. If you submit the evidence without using the form, VA will put it in your file, but it will not be part of the record and any subsequent decision will not use this evidence unless you have used the proper form. If the evidence you submit is neither new nor relevant towards that original decision, the original decision will stand. VA's goal for completing Supplemental Claims is 125 days.
Ask for a New Look from a Senior Reviewer
You can ask for a different and more experienced adjudicator to look at your case to render a new decision. This is called a "Higher-Level Review." When you choose to request a Higher-Level Review, you're asking for another review of the same evidence. A senior adjudicator with more experience 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 the original adjudicator may have made.
You cannot submit any new evidence with a higher-level review. However, you or your representative can speak with the reviewer on the phone. You can tell this 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 a Supplemental Claim decision. This option isn't available again after your having exercised your option for a Higher-Level Review or Board Appeal. If you submit new and relevant evidence through a supplemental claim as a result of a higher-level review or Board Appeal and a new decision is issued, but is not favorable, you get a second shot at another higher-level review or another board appeal.
Appeal to a Veterans Law Judge
Filling out and submitting "VA Form 10182: Board Appeal (PDF)" a initiates what is called a notice of disagreement and allows you to request an appeal of an unfavorable decision with a judge at the Board of Veterans' Appeals in Washington, D.C. The form allows you to choose one of three options for your appeal. The first option is similar to a higher-level review in that you can request a review of all of the existing evidence for your case but you are not allowed to submit any new evidence nor are you allowed any communication with the person doing the review. This is called an expedited review and VA has promised a decision within at least one year for this type of an appeal.
The second option is the opportunity to submit new evidence with your appeal but a hearing is not available. VA asserts that this option will definitely take longer than a year.
The third option is the opportunity to submit new evidence along with the request for a hearing with a judge at the Board of Veterans Appeals. These hearings normally take place via videoconference in a local regional office. This option could take many years for resolution.
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.
FREQUENTLY ASKED QUESTIONS ABOUT DECISION REVIEWS
What's new and relevant evidence?
In order to file a Supplemental Claim, you have to add evidence that's both new and relevant. New evidence is information that VA didn't have before the last decision. Relevant evidence is information that could prove or disprove something about your case. VA can't accept a Supplemental Claim without new and relevant evidence. You can either submit the evidence yourself or identify evidence, like medical records, that you'd like VA to get for you.
What's "Duty to Assist"?
VA's Duty to Assist requires VA to assist you in getting evidence, such as medical records, that's needed to support your case. VA's Duty to Assist applies during your initial claim and if you file a Supplemental Claim. If you request a Higher-Level Review or Board Appeal, Duty to Assist doesn't apply. However, the reviewer or judge will look at whether VA met its Duty to Assist during your initial claim or Supplemental Claim, and if not, they'll have VA correct that error. Your review may take longer if this is needed.
What if I miss the deadline for submitting my request?
Submitting your request on time will ensure that you receive the maximum benefit if your case is granted. Please check the deadline for each review option and submit your request before that date.
If the deadline has passed, you can either:
- Add new and relevant evidence and file a Supplemental Claim. Because the deadline has passed, the effective date for benefits will generally be tied to the date VA receives the new request, not the date VA received your initial claim. It should be noted that in this case it is much better to file a new application instead of filing a supplemental claim late as this allows you to submit the additional information available with a new application.
- Send a letter to VA requesting that it revise the decision based on a Clear and Unmistakable Error (CUE). CUE is a specific and rare kind of error. To prove CUE, you must show that the correct facts, known at the time, were not before VA or that VA incorrectly applied the law as it existed at the time. It must be undebatable that an error occurred and that this error changed the outcome of your case. Misinterpretation of the facts or a failure by VA to meet its Duty to Assist aren't sufficient reasons. Please seek guidance from a qualified representative, as you can only request CUE once per decision.
If you disagree with a Board decision, your decision will have information on additional ways to address errors.
What should I expect if I request a call with a senior reviewer?
If you request an informal conference with a senior reviewer on the Higher-Level Review option, they'll call the phone number that you or your representative provided on the Higher-Level Review form to schedule a time to discuss your case with you. The senior reviewer will try to reach you or your representative by phone twice. If no one answers, they'll leave a voice mail. During the call, you and/or your representative can talk about why you think the decision should be changed and identify errors. There won't be transcripts of this call.
What should I expect if I request a hearing with a Veterans Law Judge?
You have the option to request a hearing with a judge. A video conference hearing will take place at a VA location near you. At your hearing, you and the judge will have a conversation. The judge will listen to your testimony. The judge may ask you a few questions. Your representative, if you have one, may help you at the hearing. The hearing will be transcribed and added to your appeal file. You can add new and relevant evidence within 90 days after the hearing, but it isn't required.
What if I want to choose a different review option after I've already submitted a form?
If you've submitted a form and want to change your review option, you can send in a new decision review request form within 1 year from the date on your VA decision. You must include a letter that says you want to withdraw your existing review and switch to a different option.
If you requested a Board Appeal and want to switch to a different appeal option, you can send in a new Board Appeal form with a different option selected. You can switch appeal options within 1 year from the date on your VA decision or 60 days from the date you submitted your original form. You can't select a different appeal option if you've already submitted evidence or had a hearing.
How do I opt in if I want my legacy claim or appeal to be considered in the modernized system?
If you disagree with a VA decision you received before February 19, 2019, you can opt into the modernized review system after you've received a VA Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). To get either a SOC or an SSOC, you must file a Notice of Disagreement (VA Form 21-0958) within 1 year of the date on your decision.
After you receive either a SOC or an SSOC on the issue(s) in your Notice of Disagreement, you have 60 days or the remainder of the 1-year period following the decision you appealed, whichever is later, to opt in to the modernized system by submitting one of the following forms (and checking the SOC/SSOC opt-in box):
- Decision Review Request: Supplemental Claim (VA Form 20-0995)
- Decision Review Request: Higher-Level Review (VA Form 20-0996)
- Decision Review Request: Board Appeal (VA Form 10182)
Please refer to the table of contents in the top right column of this page for more topics on VA Disability Compensation.
TABLE OF CONTENTS
- What is Compensation
- Eligibility for Compensation
- Entitlement for Compensation
- Income Rating Levels
- Presumptive Service-Connected
- Direct Service-Connected
- Secondary Service-Connected
- Common Compensation Claims
- Claims Taking Too Long
- Shorten Claim Decisions
- Options for Bad Decisions
- Claimant Dies before Decision
- Determining Disability Ratings
- Examples of Claims
- Aid & Attendance Allowance
- Other Benefits for Claimants
This 2023 Edition provides detailed instructions on how to submit claims for benefits through the Department of Veterans Affairs new intake center and uses the successful "Fully Developed Claim Process" for faster and better decisions. View the Book...
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