After you apply for VA disabilities, you will eventually receive a rating decision from the VA. This decision may be a result that you are happy with; the rating adequately reflects the severity of your disability. Other times, the VA may decide that your disability isn’t as severe as you believe, and grant you a low rating. And, of course, the VA may decide that your condition isn’t “service connected,” or related to service, so they don’t grant you a disability rating at all. If you want an increased rating or service connection for your disability, you will have to file an appeal. But what are the deadlines for VA appeals?
Perhaps on of the most important deadlines for VA appeals is the deadline to appeal your rating decision. Once you’ve decided to appeal a rating decision, you have one year to appeal. The appeal is filed on a form 21-0958, and the appeal itself is called a notice of disagreement (NOD). You can appeal on your own, through the assistance of a Veteran Services Officer (VSO), or with the help of an accredited VA attorney. The NOD is considered by your Regional Office, the same office that issued the original Rating Decision.
After you file the notice of disagreement (NOD), the Regional Office will respond by issuing a statement of the case, or SOC. The statement of the case may grant your claim, and if so, you’re issued a new rating decision. If they deny your claim, you have 60 days to appeal the SOC to the Board of Veterans’ Appeals. This appeal is done via a form VAF-9. The average time for the Regional Office to issue an SOC is 419 days.
The Board of Veterans’ Appeals, or BVA, is the next step after appealing the statement of the case. It typically makes one of three decisions: a grant, a remand, or a denial. A remand will be required when the Board decides there are additional factual or legal issues the Regional Office should consider. Even a grant, however, will require another rating decision from the VA. Because of this, if the Board does grant your claim, you won’t be getting paid right away. The case will still have to go back to the regional office to issue another rating decision. The average time for the Board to decide is 222 days to 537 days, depending on if the Veteran asks for a hearing or not. If the board denies your claim, the next step will be an appeal to the Court, and you have 120 days to do this. However, the appeal to the Court is very paperwork intensive; meaning you won’t be able to get your appeal in last minute.
If your claim was denied at the Board, the next step is an appeal to the Court of Appeals for Veterans’ Claims, or CAVC. This is the first time a Veteran’s case will be heard by a Judge, in a traditional appellate Court, as most people would think of it. This is also the point where the record is sealed – once a decision is made by the Board, no new evidence can be submitted to support your claim. The Court will either grant the claim, remand it to the Board to make a new decision, or it will issue yet another denial. The average time for the Court to decide is 286 days.
Most cases made at the CAVC will be final decisions, for all practical purposes. On the very rare occasion that a decision is appealable further, the Veteran may appeal his claim to the U.S. Court of Appeals for the Federal Circuit. Either the Veteran or the VA may appeal to the Federal Circuit – so even if you win at the CAVC, the VA may decide to fight it. If the claim is again denied by the Federal Circuit, the Veteran has 90 days to petition the U.S. Supreme Court, asking their permission to consider the claim.
Once an appeal deadline has passed, the Veteran does have a few options. For a denied claim, the Veteran can file to reopen the claim. To reopen a claim, the Veteran will need to provide “new and material evidence” to show that the condition is service connected. If the condition is service connected, but the Veteran received a lower rating than what his condition should be rated at, he can file for an increase. To help get an increase, the Veteran should at least provide a statement explaining how the condition has worsened and provide medical records in support of the worsened condition, if possible.
The disadvantage to reopening a claim or filing for increase is that you lose the earlier effective date. That means any backpay you would get for the disability will only go back to the time you filed to reopen or filed for an increase – your backpay will not go back to the date that you originally filed the claim. The exception to this is when the VA made a clear and unmistakable error (CUE) when they first denied your claim.
Understanding your rights and the deadlines for VA appeals is very important. Missing a deadline can greatly decrease your compensation. If you are facing the VA appeals process that can sometimes be overwhelming, it may be in your best interest to contact a VA disability appeals attorney. Berry Law is a Veteran owned and managed company that is committed to protecting the rights of Veterans. If you need help appealing your VA rating, contact our team today.
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