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How Do I Appeal a VA Denial?


The VA claims process is made up of three levels in which decisions are made by various VA representatives to either grant or deny veterans’ claims. To challenge the decision of one of the levels is an appeal of the non‑favorable decision. A veteran has a right to challenge any decision at any level of the process. Within each level are several layers of decision‑making which can also impact the award or denial of veterans claims, and which may be appealed internally within said level. Based on the level of the decision or the stage of the appeal process, the veteran has differing lengths of time to submit his appeal.

 

 Three Levels of Appeals

Regional Office

The first level is the Regional Office (RO), or the Agency of Original Jurisdiction. The RO is exactly what it sounds like: the local, regional administrative office of the VA. Generally, with very few exceptions, every claim originates in the RO. Whether it’s an original claim or a claim for a higher rating for a previously service‑connected and rated disability, the RO first manages the claims process. Its functions are relatively straightforward.

It is charged with: (i) Giving notice of what a veteran needs to do, what the VA needs to do, and a general outline of how events will transpire in the claims process; (ii) sympathetically developing the claim by obtaining medical records from the military and private health care practitioners, non‑medical service records, witness statements, employment records and other evidence available to substantiate claims; (iii) setting up any necessary VA medical examinations.

This medical examination can focus on a veteran’s present medical condition or rather the nexus between an event in the military and a veteran’s present disability. This examination alone cannot establish service connection. The RO uses this examination, along with any other medical evidence, to determine a VA Rating Decision, which veterans have the right to disagree with. Often veterans will disagree with a denial of service connection, the disability rating percentage awarded, or even the effective date benefit payments will begin. Veterans can officially challenge the VA’s decision by filing of a Notice of Disagreement, which must be filed within one year of the date of the Rating Decision. After which, the Rating Decision will become final and non-appealable.

In theory, the Notice of Disagreement simply needs to state in writing which awards or denials the veteran disagrees with. While there is no procedural requirement to address any specific errors made in the Rating Decision, we approach it as a chance not only to educate the RO as to its mistakes, but also to highlight our specific complaints for the next level of review and development of the claim. A veteran has the option of requesting an internal re-review of the Rating Decision by the RO. In theory, this is perormed by someone more senior and experienced then the original claim’s examiner. In practice, we have received re-reviews that appear to be a mechanism by which the RO’s Rating Decision is delayed from further true appellate review. Our representation includes recommending on a case by case basis whether to request the RO perform this internal review.

Upon receipt of the Notice of Disagreement, the RO prepares a “Statement of the Case,” which is a more detailed overview of the claims development, review and resulting Rating Decision. This triggers the second level of claims appeals, The Board of Veterans Appeals (BVA).

The Board of Veterans Appeals

The second level is the Board of Veterans Appeals. The BVA, like the RO, is a department of the VA. The BVA reviews veterans’ claims for errors made by the RO. This de novo review treats the RO decision as if it never happened. The Board may make its own findings of fact regardless of the findings at the level below.

At the BVA, the veteran may request a hearing, but normally the time involved in actually obtaining said hearing unnecessarily delays the adjudication of the claim. A veteran may instead submit additional evidence. However, in many cases the BVA decides the appealed issues with the exact same record the RO reviewed.

In forming its decision, the BVA may affirm the RO decision, reverse the RO decision and render what decision it believes proper, remand the claims back to the RO for further development, or any combination thereof. Normally the BVA will decide the case, but in some instances where the RO neglected to properly develop the case ‑ as in failing to order a medical examination or obtain specific evidence related to the claims ‑ the BVA will remand the claims back to the RO for further development. In some instances the BVA will order a claim to be service connected and remand it back to the RO for the calculation of a disability rating. Appeals may be taken from the BVA to the United States Court of Appeals for Veterans Claims (USCAVC). This is the third level of the claims process.

The United States Court of Appeals for Veterans Claims

The United States Court of Appeals for Veterans Claims is a court created by Congress under Article One of the United States Constitution. It stands entirely apart from the VA and sits in Washington D.C. Its principle job is to sit in appellate judgment of the VA’s decisions at the BVA. The federal rules of appellate procedure (FRAP) apply for the most part, although the court has promulgated some unique rules. When reviewing the BVA decision, unless there is zero basis for factual determination ‑ even if the USCAVC disagrees with the finding, and would have to come a different conclusion ‑ the USCAVC will defer to the BVA’s factual determination. The USCAVC cannot reweigh the evidence offered in support of or against a claim. However, the USCAVC reviews issues of law de novo and does not defer to the BVA on these questions. Thus, almost all arguments made in the USCAVC are legal arguments.

The focus is on mistakes the BVA made in applying the relevant statutes and regulations to the claim. It is a very technical process well beyond the scope of this introductory article. The USCAVC generally affirms the BVA decision or remands it to the BVA for further consideration. It seldom renders a decision because to do so would almost always include weighing facts. Sometimes the court will affirm the BVA’s decision on some of the veteran’s claims and remand others. The members of this firm have significant experience before the USCAVC.

The veteran may appeal the USCAVC’s opinion to the United States Court of Appeals for the Federal Circuit. After the Federal Circuit renders a final decision, the veteran may petition the United States Supreme Court to hear the appeal.

The dedicated team handling your case at the Berry Law Firm is led by experienced lawyers who are decorated military veterans. Our firsthand experience with military service and our immersion in veterans law and VA claims are distinct advantages for your appeal.

We represent military veterans throughout the United States, aggressively pursuing the full and fair benefits they deserve. Call (888) 883-2483 to speak to one of our team members for a free consultation about your VA claim for a physical or mental health condition.