What Are Your Veterans Affairs Appeal Options?

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Different Appeal Options for Your Veterans Affairs Claim

Veterans who are denied disability benefits by the Department of Veterans Affairs (VA), are given a disability rating that is too low, or aren’t awarded the right amount of backpay have the option to appeal the VA’s decision. Unfortunately, the VA has built a complicated appeals system, and many Veterans get confused among the different appeal options and deadlines that can affect the outcome of their appeal. To overcome the hurdles, Veterans often benefit from the assistance of an experienced VA disability attorney in appealing VA decisions.

At Berry Law, we help Veterans appeal unfavorable VA decisions to get all the disability benefits they deserve. In 2020 alone, we helped Veterans recover over $60 million in retroactive disability benefits who have served the VA. Featuring attorneys from the Army, Navy, Air Force, and Marine Corps, or who are military family members, we understand how difficult the VA appeals process can be and have experience helping fellow Veterans get the benefits they earned. We’ve handled every type of VA appeal and can provide you the legal firepower you need. Contact Berry Law today for a free case evaluation.

Keep reading to learn more about the possible appeal lanes Veterans have when appealing their decisions.

Understanding Your Veterans Affairs Appeal Options

In 2017, the Veterans Appeals Improvement and Modernization Act (AMA) was passed in an effort to expedite the appeals process for Veterans. The goal was to help Veterans get decisions quicker and, in turn, get the disability compensation they need faster.

The AMA applies to all cases in which the VA decision is issued on or after February 19, 2019. For older cases, Veterans can opt into the AMA system, or choose to stay in the legacy system, which only has one appeal option. Veterans who remain in the legacy appeals system may only appeal to the Board of Veterans’ Appeals by filing a Notice of Disagreement (NOD) within one year of a VA decision and then, within 90 days after the VA Regional Office issues a Statement of the Case, submitting a VA Form 9 Substantive Appeal.

Click here to learn more about the legacy system for appealing VA decisions made before February 19, 2019.

The Appeals Modernization Act, in contrast, added multiple decision review lanes to the VA appeals process, each with their own specific advantages and disadvantages. While this has led to quicker decisions for Veterans, it has also led to some confusion as Veterans may not know which option is best for their claim.

Veterans who are not satisfied with the decision of a VA Regional Office
can request a decision review or appeal through a(n):

  • Higher-Level Review
  • Supplemental Claim
  • Appeal to the Board of Veterans Appeals (BVA)
  • Veterans who are not satisfied with a decision of the BVA may appeal through a(n):
    • Supplemental Claim
    • Appeal to the U.S. Court of Appeals for Veterans Claims (CAVC)

Requesting a Higher-Level Review

What Decisions Can You Appeal When Can You Appeal What Evidence Will VA Consider Best Option If
  • VA Regional Office initial decisions

Supplemental Claim lane decisions

Within one year after the notice letter of the decision the Veteran is appealing Only the evidence already part of your file when VA made the decision the Veteran is appealing VA made a mistake in applying the law or missed evidence, and the Veteran has no new evidence to submit

Veterans who are not satisfied with the decision of a VA Regional Office can request that more experienced VA claims adjudicator take a look at the evidence and determine if the decision was correc. When a Veteran chooses this lane, they can request an informal phone conference with the claims adjudicator  to discuss their issues. A decision in this lane takes an average of 125 days.

Using this option, Veterans can provide new arguments to point out errors in facts or law by the VA. But, Veterans appealing through the Higher-Level Review lane are not allowed to submit any additional evidence to support their claim. This is one of the biggest disadvantages of the Higher-Level Review lane Veterans who wish to submit additional evidence can do so by utilizing the Supplemental Claim lane or in some cases the BVA appeal lane (discussed below).

When appealing through this lane, if the claims adjudicator determines that the VA has not fulfilled its legal duty to assist a Veteran, the appeal will be transferred into the Supplemental Claim lane for the VA to obtain the necessary evidence in your case.

To file a Higher-Level Review, Veterans must submit VA form 20-0996 within one year after the date of VA’s letter notifying the Veteran of the decision the Veteran wants reviewed.

If you need assistance requesting a Higher-Level Review, contact Berry Law to see if we can help.

Click here to learn more about the Higher-Level Review lane.

Appealing Through
the Supplemental Claim Lane

What Decisions Can You Appeal

When Can You Appeal

What Evidence Will VA Consider

Best Option If

  • VA Regional Office initial decisions
  • Supplemental Claim lane decisions
  • Higher-Level Reviews
  • Decisions of the BVA
  • Any time
  • For the greatest amount of backpay, Veterans must file within one year after the notice letter of the decision they’re appealing
  • Veterans must include new and relevant evidence with their Supplemental Claims
  • VA will consider all the evidence in the Veteran’s claims file and the new and relevant evidence
  • The Veteran has new and relevant evidence to support their claim

Veterans can use the Supplemental Claim lane to appeal any previous decision (whether by a VA Regional Office or the BVA). This is perhaps the most common VA appeal lane. To submit an appeal through the Supplemental Claim lane, a Veteran must provide the VA with “new and relevant evidence.” Without new and relevant evidence, VA will not consider a Veteran’s Supplemental Claim.

New and relevant evidence is any evidence that VA did not previously have and that relates to an issue within your claim. Some examples of new and relevant evidence submitted along with a Supplemental Claim lane appeal include:

  • Veteran Statements: Statements provided by the Veteran about an in-service injury or event, current symptoms or symptoms that have been continuous since service, or why the Veteran might not have sought treatment during service.
  • Buddy Statements: Statements from friends and family can help prove you were injured in service, especially if they can compare any impairment to your prior ability to function, or if they can attest to seeing an injury occur firsthand.
  • Medical Records: A confirmed diagnosis from an independent medical examination can help prove service connection or show that you are dealing with more severe symptoms than the rating the VA has assigned you.
  • Medical Opinions: A statement from a private physician expressing that your current disability is at least as likely as not related to your service can help with service connection.
  • Newspaper Articles: Newspaper articles at the time of your injury can help prove the event or stressor that caused your disability.
  • Images: Photographs can help show the VA that you were in a specific location at a particular time, even if records do not show you were there, or they can help show that a current disability is more than the rating the VA has assigned you.

When appealing through this lane, the VA has a duty to assist you in gathering new and relevant evidence. For a Veteran to appeal through the Supplemental Claim lane, they must submit additional evidence along with VA Form 20-0995 at any time after a VA decision. However, to preserve the greatest possible amount of backpay, Veterans must file the Supplemental Claim within one year after the date of VA’s letter notifying the Veteran of the decision the Veteran wants reviewed..

If you need assistance appealing your decision through the Supplemental Claim lane, contact Berry Law to see if we can assist you.

Click here to learn more about appeals through the Supplemental Claim lane.

Appealing to the Board
of Veterans Appeals (BVA)

What Decisions Can You Appeal

When Can You Appeal

What Evidence Will VA Consider

Best Option If

  • VA Regional Office initial decisions
  • Supplemental Claim lane decisions
  • Higher-Level Reviews
  • Within one year after the notice letter of the decision the Veteran is appealing
  • Depends on whether the Veteran selects Direct Review, Evidence Submission, or a Hearing (see below)
  • The Veteran has exhausted their options or believes there is no point to trying a Higher-Level Review or Supplemental Claim 

Veterans can also appeal to the Board of Veterans Appeals (BVA). BVA can choose to grant claims, deny claims, or—if the BVA determines that the VA has not fulfilled its legal duty to assist the Veteran in developing the claims—to remand the claims back to the VA Regional Office to obtain more evidence. 

For a Veteran to appeal to the BVA, they must submit a VA Form 10182, Decision Review Request: Board Appeal (also called a Notice of Disagreement or NOD) within one year after the date of VA’s letter notifying the Veteran of the decision the Veteran wants reviewed. When appealing to the BVA there are multiple different appeal options to choose from, which affect what evidence the BVA will consider and how long the appeal will take. Veterans can request:

  • A Direct Review: Veterans should choose this BVA appeal option if they do not want to submit any additional evidence or request a hearing. These decisions take approximately 365 days.
  • Evidence Submission: Veterans should choose this BVA appeal option if they would like to submit additional evidence in support of the claim. Veterans have 90 days from filing the NOD to submit supporting evidence. Evidence submitted after the VA decision being appealed and before the NOD will not be considered and must be resubmitted. These appeals take over a year on average for a decision to be made.
  • A Hearing: Veterans should choose this BVA appeal option if want to supply the VA with additional evidence and testify in front of a Veterans Law Judge. You must submit evidence at the hearing or within 90 days of the hearing when appealing this way — any evidence submitted after the VA decision being appealed and before the hearing will not be considered and must be resubmitted.. It takes more than a year on average for a decision to be made on this type of appeal.

If you need assistance appealing to the BVA, contact Berry Law to see if we can assist you.

Click here to learn more about appeals to the BVA.

Appealing to the U.S. Court of Appeals
for Veterans Claims (CAVC)

What Decisions Can You Appeal

When Can You Appeal

What Evidence Will CAVC Consider

Best Option If

  • Decisions of the BVA
  • Within 120 days of the date of the BVA decision the Veteran is appealing 
  • Only the evidence that was before the BVA at the time of the decision the Veteran is appealing
  • The Veteran does not believe a Supplemental Claim is worth trying, or
  • The Veteran wants to challenge the VA’s interpretation of the constitution, U.S. laws, or VA regulations 

The CAVC is a national court in Washington D.C. that hears appeals by Veterans who not satisfied with the BVA’s decision. The CAVC hears cases related to disability benefits, survivor benefits, education benefits, and reimbursement for unauthorized medical payments.

When appealing to the CAVC, Veterans should understand that they only review your existing claim file in most cases. A judge or panel of judges will review the claim before making a decision. They also may request oral arguments, but this is less common.

Decisions at the CAVC can:

  • Interpret constitutional, statutory, and regulatory provisions to determine if the BVA decision or broader VA policy implemented them correctly
  • Determine the meaning or application of the BVA’s decision
  • Require the VA to follow the CAVC’s ruling

Upon reviewing the case, the CAVC will either affirm the BVA’s decision or remand the case (meaning the CAVC sends the case back to the BVA to correct its decision). Sometimes the BVA cannot correct its decision without remanding the case back to the VA Regional Office to help the Veteran develop the claims and obtain more evidence.

Veterans wishing to appeal to the CAVC have 120 days from the BVA’s decision to file an appeal. They must also identify their attorney unless they choose to appeal the decision pro se (on their own). Keep in mind, if a Veteran appeals their decision pro se, they must follow all the court’s rules and procedures, which can be complicated.

Veterans who appeal to the CAVC pro se are typically at a disadvantage.

Berry Law has experience handling appeals at the CAVC. Contact our team today if you need assistance appealing a BVA decision to the CAVC.

Click here to learn more about appeals to the CAVC.

Berry Law – The American Veteran’s Law Firm

Berry Law is America’s Veterans Law Firm, and your fire support team to battle the VA. We won’t stop fighting until every Veteran receives all the disability benefits they deserve.

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We’ve helped Veterans with appeals though the Higher-Level Review lane, through the Supplemental Claim lane, to the Board of Veterans Appeals (BVA), and to the Court of Appeals for Veterans Claims (CAVC). If you need assistance appealing your claim, our team can help with any lane, and can help you understand which option may be best for you.

Contact Berry Law today to schedule a free case evaluation.

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