Appealing a VA decision can be confusing and difficult. There are many things to consider before you submit your 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 VSO, or submitting an appeal on your own, there are ten things you absolutely need to consider before you file an appeal with the VA.
On August 23, 2017, the Appeals Modernization Act (“AMA”) became law. The AMA fundamentally changed the way Veterans submit appeals and the VA processes appeals. It also fractured the type of appeals into two types:
Claims are now either part of the “Legacy” system of appeals or the AMA system. Claims in the Legacy system can be waived to the AMA system, but once you are in the AMA system you stay in the AMA system. It is important to understand which system your claims are in because it changes the way the VA processes you appeal.
At this point, if your claims are in the Legacy System, the time to appeal has expired, the VA needs to issue a Statement of the Case or Supplemental Statement of the Case, or the claims are pending at the Board of Veteran Appeals (“Board”) or Court of Appeals of Veteran Claims (“CAVC”).
Before the new AMA system, a Veteran submitted a Notice of Disagreement to the VA to appeal a decision. After the Regional Office decided on the decision they would issue a rating decision if any part of the VA granted and issue a Statement of the Case (“SOC) discussing any claims the VA denied.
To appeal an SOC a Veteran had to submit a VA Form 9 to appeal to the Board. The VA is still issuing SOCs that Veterans must appeal on a VA Form 9. If you want a hearing on your conditions, you must indicate that on that form.
The next decision should be a Board Decision or a Supplemental Statement of the Case (“SSOC”). A veteran can appeal a Board Decision to the CAVC or file a claim to reopen in the AMA—but the second option may sacrifice the Veteran’s effective date (more on that later).
SSOCs are automatically reviewed by the Board. But, if you have additional evidence supporting your claim you want to 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 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 make a decision. This is a decision you should speak to your representative about 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. But if the VA finds a duty to assist error and moves the claim from the higher-level review process to the supplemental claim lane, a veteran can submit a new higher-level appeal to 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 you want to submit the claim within a year of the notification date of the decision you are appealing.
A Board appeal is an appeal directly to the Board of Veteran Appeals. New evidence can be submitted. 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 is evidence that 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 that 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 has to relate to an element of service connection at issue. This means if the VA has conceded that you have a diagnosis for a condition, then any evidence you submit related to that diagnosis is not relevant. If the VA concedes that you had an in-service event, any 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, there are three docket lanes to choose from:
Direct docket is the fastest way to get a decision from the Board. A direct docket means that the Veteran has no more additional evidence related to his claim. If you have more evidence since your last decision that you think will change the outcome of your claim, do not pick direct docket.
You should use an 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, you have 90 days from when you submit the appeal to submit any additional evidence.
The hearing docket provides you with a Board hearing in front of 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 representation, your representative will ask you questions, and the judge may ask you some additional questions. If you have additional witnesses your representative and the judge may ask them questions as well. After the hearing, you have an additional 90 days to submit any additional 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 4 months to 12 months.
If the Board remands your case in the Legacy System and the VA issues an SSOC—you maintain your place in the Board docket, so sometimes you get a decision in less than a few months after your SSOC.
For Board appeals under the AMA, on the direct docket, currently, you have to wait at least 18 months for a decision. The VA is trying to get those decisions back to veterans within a year, but because of the remaining Legacy cases, the VA does not consistently get those decisions back 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 the information from the Board on what appeals it is processing on the Board’s website: Board of Veterans’ Appeals (va.gov).
If you are trying to prove service connection, you must show:
You can file an appeal even if the VA granted you service connection. You can appeal the effective date of service connection or the rating. If you are unhappy with your rating or your effective date, you need to follow the same appeal process that you would if you were still fighting for service connection. What you have to prove for effective date and for ratings 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 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 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.
Some conditions are very simple to get service-connected. Sometimes the VA improperly and continuously denies service connection, earlier effective dates, or higher ratings. If you are concerned about the appeals process and you want assistance with your claims, contact Berry Law.
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