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How To Appeal Denied VA Disability Claims & Decisions: The Legacy System Before February 2019

The various challenges faced by VA adjudicators result in lots of opportunity for error to be committed. The rather narrow focus of VA decision makers, who are operating inside a box defined by their manual, leads to an utter lack of imagination or tolerance for anything out of the ordinary, which also yields erroneous and unfair decisions. And then there is a fair degree of frank incompetence among VA employees, who sometimes simply don’t follow their own rules and procedures. All this is to say that the VA often fails to carry out its statutory and regulatory duties, ignores or misapplies the law, or fails to consider relevant facts. The agency provides an appeal mechanism for these occasions, and there is judicial (court) review available as well.

One basic principle to remember is that anything that has not been granted has been denied. Admittedly, that sounds obvious, but it’s not. I’ve seen VA decision letters stating that the decision reflects a complete award of the benefit sought, when there is actually some aspect of the claim that remains in dispute, for example the rating assigned. (VA may not be wrong technically, as the decision may address only service connection, and rating is a “downstream” issue, but for the veteran, a grant of service connection is useless without a rating, which is what controls the money he’ll be paid; so the language about a “complete grant” is misleading.)

Procedure For Appealing A Regional Office Decision

The procedure for appeal from an RO decision is to advise the agency of the intention to appeal with a Notice of Disagreement (NOD). There is actually another step one can take, theoretically, before filing an NOD, and that is to ask for informal reconsideration by the regional office. We most times do not recommend taking this step, for a couple of reasons. Most important, the chances of the RO reconsidering and changing what it just finished doing are miniscule. The one possible exception is where you have new and material evidence, game-changing evidence, to submit; then there’s some chance the RO will now see the light where it didn’t before. The second reason is that the reconsideration adds delay, most likely for no result, and it does not suspend the time for filing an NOD, so there’s a risk that your appeal period will run out while you’re awaiting action on the reconsideration if you don’t keep careful track of your due date.

For the Notice of Disagreement you must submit VA’s special form, 21-0958, but it can be supplemented with other materials. It must be filed within one year of the decision you wish to appeal. The legal date of the decision is actually the date the cover letter states it was mailed. Submit the NOD to the address listed for appeal in the decision letter you received, for which you may have to search the letter pretty carefully; VA has taken to burying this information, requiring you to cross reference two or three different inserts to find it. It used to be that the ROs issued most decision letters, but VA has centralized many functions; for instance, most all of our correspondence for claims in Virginia goes to an address in Janesville, Wisconsin.

The DRO Review Option On An NOD

When you file the NOD or shortly afterward, you’ll have an option to elect Decision Review Officer review; a DRO is a senior RO rating specialist, who will have more experience than the person who originally decided the claim but will apply basically the same approach. For this reason, DROs are generally good at recognizing overt or obvious errors—failing to obtain a medical exam, for instance—but they are not likely to overturn an RO decision where there’s a judgment call involved, such as the adequacy of a C&P exam or opinion. Whether you devote the several months that will be consumed by a DRO review depends on how likely you think it is that the DRO will fix the particular problem. If you decline DRO review, or if the DRO continues the denial of the claim, then VA will issue a Statement of the Case (SOC).

Perfecting An Appeal To The BVA| VA Form 9

Currently this can take many months, but whenever it occurs, the SOC is what triggers the claimant’s obligation to “perfect” the appeal by filing a Form 9 substantive appeal, which must be submitted within 60 days of the date the SOC was mailed. If you don’t submit an NOD within one year of the rating decision, or you don’t file the Form 9 within 60 days of the SOC (or within that one-year period following the original decision, if there’s time left), the appeal will be dismissed and the rating decision will become final and unappealable (except in extremely rare circumstances). So these deadlines are important.

The VA forms themselves, explain what sort of information should be included in the NOD and the Form 9 appeal; neither is very complicated. One caution: the NOD form invites you to specify what percentage rating you desire. We do not fill this in, as we suspect it establishes a ceiling for the rating; instead state on the form that the veteran should be awarded a rating of “at least __%.”

After the Form 9 is submitted—currently, long after—the RO will “certify” the claim to the Board. This means that the RO has released the file to the Board, but it will still be a long, long time before the Board actually decides the appeal because of the huge backlog there.

Because of this long delay, it is not unusual for new relevant evidence to come along during the waiting period. By law, if you don’t waive initial consideration of this new evidence by the RO, the “agency of original jurisdiction,” the Board is obliged to send the case back to the RO for that to happen. This can be useful. If you’re awaiting still more evidence you hope to develop, the remand prevents the Board from deciding the claim before you can get the new evidence, without prejudicing your docket order at the Board, which runs from the Form 9 submission. But the remand for RO consideration stalls the claim even longer before reaching the point of decision by the Board, and the wait is extremely long already (currently 5-7 years).

Arguing To The Board

When the Board is ready to take the appeal it will notify the claimant that he or she has 90 days to submit any additional evidence or argument. If you haven’t done so already by this time (and there might be tactical reasons to wait), you should submit a “brief” or argument explaining exactly why the claim should be granted. You don’t actually have to point out errors made by the RO, since the Board reviews anew (de novo), but in practical terms you’re often going to be pointing out mistakes made by the VA thus far, such as the failure to obtain an adequate medical opinion.

While at the RO you were dealing with entry-level employees of the VA who are neither lawyers nor doctors, but at the Board you’re now writing for a lawyer, so in arguments to the Board you can include more legal citations, such as key regulations or case decisions. But remember, cases are mostly won on their facts, so you want to explain why the facts of the case show that the claimant is entitled to the benefit under the law. So don’t get carried away with legal citations. Stick to the basic legal requirements and argue how the facts fit them.

Appeals To The Courts

If you lose at the Board, appeal is available outside the VA, first to the Court of Appeals for Veterans Claims (CAVC). You have 120 days from the date of the Board decision to file a notice of appeal at the CAVC. This is a simple declaration that you are appealing a Board decision of a certain date; no other argument is made at this point. The Court will set a briefing schedule, direct the parties to assemble the relevant record, conduct a mediation conference to try to resolve the case, and then decide it after all the briefs are submitted if the parties don’t reach an agreed resolution. (About half the cases do get resolved eventually by agreement between the claimant and the VA’s lawyers.) Briefing at the CAVC (and on subsequent appeal, if any, to other courts) is full-fledged legal argument, which should be done by lawyers if the case is to be properly presented. This is the first time the claim is actively opposed (by lawyers for VA), so it’s important to meet the VA’s legal arguments competently. Briefing at the Federal Circuit is even trickier because that court’s jurisdiction has been severely limited by Congress in veterans cases.

That said, the technique of arguing veterans cases is not substantially different from how you present claims at the agency, with one very significant exception. On appeal to the courts, you must focus on the legal errors that you believe were made by the agency. You don’t get to reargue the facts the way you do at the Board of Veterans’ Appeals. The logical structure of argument, though, is essentially the same: the law dictates eligibility for benefits and requires adherence to certain procedures; the argument on appeal is that VA did not follow the law in those respects.

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