Appealing a VA Denial

The VA claims process is made up of three generally recognized 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. The veteran has a right to challenge any decision at any level of the process. Within each level is often several layers of decision‑making which can also impact the award or denial of veterans claims, and which may be appealed internally within that 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.

The Regional Office

The first level is the regional Office ["RO"]. The RO is exactly that: the local, regional administrative office of the VA. It is considered to be the “agency of original jurisdiction” so it is sometimes labeled the AOJ as well as RO. Generally, with very few exceptions, every claim originates in the RO. Whether it be 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.

However, whether it be labeled the RO or the AOJ, its functions are relatively straight forward. It is charged with:

(i) giving the veteran notice of what he 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, as well as private health care practitioners, non‑medical service records, witness statements in some instances, employment records and whatever other evidence may be available from whatever source to substantiate veteran’s claims;

(iii) in the event veteran’s claim triggers a need for a medical examination to best show veteran’s present medical condition, or any other aspect of the veteran’s claim, setting up a VA medical examination of the veteran. This medical examination can focus one or both issues of:

(a) the veteran’s present medical condition;

(b) the nexus between an event in the military and veteran’s present military condition. That is, did the event in‑service cause or aggravate veteran’s present medically diagnosed medical condition. This is the necessary nexus to establish “service connection”.

The RO’s function culminates in its making a decision on veteran’s claims. This decision is called a “Rating Decision”. In it the VA determines whether the claim is “service connected” or not; and, if it is “service connected” at what percentage of disability the claim is rated.

Often the veteran will disagree with some finding in the Rating Decision. Whether it be the denial of service connection for a claim, the amount of disability rating percentage awarded for the claim, or even the effective date of the start of the payment of the benefits, the veteran has the right to challenge any or all of the Rating Decision. This is done by the filing of a “Notice of Disagreement” with the RO challenging the Rating Decision. It must be filed within one year of the date of the Rating Decision, or the Rating Decision will become final and non‑appealable.

In theory the Notice of Disagreement simply needs to state in writing the veteran disagrees with and is appealing the Rating Decision, and what awards or denials the veteran is appealing. However, in practice, the firm treats a Notice of Disagreement as an opportunity educate the RO on perceived errors of fact or law. While there is no procedural requirement to address the 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.

The veteran has the option of requesting an internal re-review of the Rating Decision by the RO. In theory this is done by someone more senior and experienced then the original claims’ examiner. In practice, we have received such 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 next level of the appeal to the second level. The Board of Veterans Appeals.

The Board of Veterans Appeals

The second level is to the Board of Veterans’ Appeals ["BVA"]. The BVA, like the RO, is a department of the VA. Like the RO, its employees are paid employees of the VA.

The BVA reviews veterans’ claims for errors made by the RO. This de novo review is, in theory, as if the RO decision 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 a hearing unnecessarily delays the adjudication of the claim. Regardless of a decision to request a hearing, the veteran may 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 “service connected” and remand the claim 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. 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 [USCAVC] is a court created by Congress under Article One of the United States Constitution. It stands entirely apart from the VA. It 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.

The USCAVC has very limited jurisdiction to review factual determinations made by the BVA. When reviewing the BVA decision, unless there is no basis [as in none] for the 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 will not and, in fact by law, 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. [In certain instances it will defer to the VA its application of a regulation when it is a matter within the discretion of the VA.] 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 the weighing of facts. Sometimes the court will do both in a case ‑ affirming the BVA’s decision on some of the veteran’s claims, while remanding others.

The members of this firm have significant experience before the USCAVC.

The United States Court of Appeals for the Federal Circuit & The United States Supreme Court

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 a United States Supreme Court to hear the appeal.