Appealing a VA benefits decision can be confusing and difficult. There are many things to consider before you submit your VA appeal. Here at Berry Law, we look at every aspect of your case before we file an appeal.
Whether you are working with a lawyer, a Veteran Service Officer (VSO), or submitting an appeal on your own, here are ten things you need to consider before filing a VA appeal.
On August 23, 2017, the Appeals Modernization Act (AMA) became law. The AMA fundamentally changed how Veterans submit appeals and how the VA processes appeals. As a result, VA appeals were divided into two categories depending on when the benefit decision was issued:
Claims in the Legacy system can be transferred to the AMA system, but once you are in the AMA system, you stay in the AMA system. Any new claims will automatically be in the AMA system. It is important to understand which system your claims are in because it changes the way the VA processes your appeal.
Likely, if you are in the Legacy System, you have already submitted your first appeal. Because in the Legacy system, you only had one year to submit an appeal
Before the new AMA system, a Veteran submitted a Notice of Disagreement to the VA to appeal a decision. After the Regional Office decided, it would issue a rating decision for the claims granted by the VA and issue a Statement of the Case (SOC) discussing any claims the VA denied.
At this point, in 2023, it is rare for the VA to still be issuing SOCs, but it is not unheard of.
To appeal a SOC to the Board, You must submit a VA Form 9. If you want a hearing on your conditions, you must indicate that on that form. Be aware that requesting a hearing could delay your claim, but it is also your only chance to present your case before a judge. After the hearing, an administrative law judge will issue a decision on your case. They will either grant your claim, deny your claim, or remand your claim.
If the claim is granted, you will receive another rating decision from the VA confirming your rating and effective date. If the claim is denied, you can appeal that matter to the Court of Appeals of Veteran Claims (CAVC). Be aware that sometimes, a grant can also be a denial. For example, if the BVA decision says you are granted an effective date of June 30, 2020, that is also a denial of an effective date before June 30, 2020.
If the VA “remands” your claim, that means it is sending it back to the VA regional office for further development. Often, the BVA will send your claim back for an additional examination or to obtain additional medical records.
If, after that additional development, the VA Regional Office determines it is still denying your claim, it will issue a Supplemental Statement of the Case (SSOC). SSOCs are automatically reviewed by the Board. But, if you have additional evidence supporting your claim, you should submit it to the VA immediately after or right before an SSOC is issued.
If you submit additional evidence, the Regional Office (RO) will review the evidence and sometimes issue a new SSOC if the new evidence doesn’t change their decision.
You can also waive RO review of new evidence if you want the Board to decide. You should speak to your representative about this decision because it is specific to your claim.
Most VA claims are in the AMA system for appeals. In the AMA, there are three options to appeal a rating decision:
A higher-level review is a new review of the decision you received. You cannot submit new evidence for consideration with a higher-level review. The reviewer looks at the evidence already submitted and determines if there is enough evidence to grant your claim.
Sometimes, the reviewer will determine that the VA failed in its duty to assist the Veteran in developing his claim, and the VA must collect more evidence.
Higher-level reviews must be submitted within one year of the date on the notification letter of the rating decision. Higher-level reviews cannot be submitted to a review from a higher-level review decision.
However, if the VA finds the duty to assist was not met and moves the claim from the higher-level review process to the supplemental claim lane, a Veteran can submit a new higher-level appeal of the new decision after the evidence development is complete.
A supplemental claim is used when the Veteran has new evidence related to the claim. A supplemental claim can be submitted at any time, but to preserve your effective date for benefits, you want to submit the claim within a year of the notification date of the decision you are appealing. You cannot submit a Supplemental Claim without additional evidence.
A Board appeal is an appeal directly to the Board of Veteran Appeals. New evidence can be submitted depending on which type of Board Appeal you select. Keep reading to learn more about Board appeals.
A Supplemental Claim can be used to appeal a current decision with new evidence or reopen a previously closed claim (a decision older than one year). In either case, you must submit new and relevant evidence with your appeal.
New evidence must consist of evidence the VA does not already have.
If you have received treatment for your condition after the last decision, this is new evidence. If you have a buddy statement you never sent to the VA, that is new evidence. If you found a new research study linking your condition to your service, that is new evidence. The only requirement is that the VA did not review that evidence in the prior decision.
Relevant evidence is a harder standard to meet. For evidence to be relevant, it must relate to an element of whether there is a service connection. This means if the VA has agreed that you have a diagnosed condition, then any further evidence you submit related to that diagnosis is irrelevant.
If the VA concedes that you had an in-service event, any new evidence related to that in-service event is not relevant. For the VA to process and approve a Supplemental Claim, the evidence submitted must be both new and relevant.
If you select a Board Appeal, you have three docket lanes to choose from:
Following the direct docket path is the fastest way to get a decision from the Board. This path means that the Veteran has no additional evidence related to their claim. So, if you have more evidence since your last decision that you think will change the outcome of your claim, do not choose the direct docket option.
You should use the evidence submission docket if you have additional evidence for the Board to consider but you do not want to have a Board hearing. Under the evidence submission docket path, you have 90 days from the date you submitted your appeal to submit any additional evidence.
The hearing docket path provides you with a Board hearing before a Board judge. Hearings are informal but under oath and allow you to submit additional evidence and even have witnesses testify.
In the hearing, if you have legal representation, your attorney will ask you questions, and the judge may also ask you additional questions. If you have additional witnesses, your lawyer and the judge may also ask them questions. After the hearing, you have another 90 days to submit further evidence.
The wait times vary for the different appeal systems and the different types of appeals within the AMA. Generally, for a Supplemental Claim or Higher Level Review, the average time for the VA to make a decision is four months to 12 months.
If the Board remands your case in the Legacy System and the VA issues an SSOC, you will maintain your place in the Board docket, and you may receive a decision in less than a few months after your SSOC.
For Board appeals under the AMA, on the direct docket, the current wait time is at least 18 months for a decision. The VA is trying to return decisions to Veterans within a year, but because of the delay caused by the remaining Legacy cases, the VA does not consistently return decisions to Veterans within a year.
If you requested a hearing or used the evidence submission docket, you could be waiting longer than 18 months for a decision from the Board. You can view information about which appeals the Board is processing on the Board’s website: Board of Veterans’ Appeals (va.gov).
If you are trying to prove a service connection to qualify for VA benefits, you must show:
You can file an appeal even if the VA granted you a service connection. For example, you can appeal the effective date of the service connection or the rating.
If you are unhappy with your rating or effective date, you need to follow the same appeal process as you would if you were still fighting to establish a service connection.
What you must prove to change your effective date or increase your rating varies from condition to condition.
The VA bases effective dates on the day you submitted your claim or the date the evidence shows you are entitled to a service connection or an increased rating.
If you submit a claim and continuously pursue that claim, meaning you never let a year pass before filing an appeal (or didn’t miss a VAF 9 filing deadline in Legacy appeals), the effective date for your claim should be either the date you filed the claim or the date you were diagnosed with a disability, whichever is later.
If you didn’t continuously pursue your claim and you had to reopen your claim, the effective date is either the date you reopened your claim or the date your condition developed, whichever is later.
Before you file a new claim or a claim to reopen a closed claim, you can also file what is called an intent to file. If you filed your new claim or your claim to reopen within one year of an intent to file, your effective date should be the date of your intent to file.
The VA has a scheduler rating system for most disabilities. This means for most conditions, you have to meet specific medical requirements for the VA to award you a higher rating.
Since each condition is different, speak with an experienced VA benefits lawyer to determine the requirements you must meet for your unique condition and what rating you can expect to receive.
Some conditions are very simple to qualify for a service connection. Sometimes, the VA improperly and continuously denies service connections, the correct effective dates, or proper disability ratings. This is when a skilled VA benefits law firm can be your best ally.
If you are concerned about the appeals process and want assistance with your claims, look no further than Berry Law. Call us at (888) 682-0751 or complete our online contact form for more information.
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