Update:
This post describes the VA disability appeals process for decisions issued prior to February 19, 2019. Decisions received after that date are subject to the new VA appeals process.
At The Comerford Law Office, many of our clients contact us after being denied benefits. These veterans know they are disabled and yet the VA has either turned down the application or given them a low rating. Many of these people are confused about what to do or whether getting the decision overturned is even possible.
Fortunately, veterans have substantial appeal rights, but they need to know how to bring an appeal the right way. Below, we will summarize the appeals process.
File a Notice of Disagreement
When you receive your decision letter, read it carefully. It should explain why you were denied benefits or underrated. The letter should also explain your appeal rights.
The first step in an appeal is to file a Notice of Disagreement (NOD), which is typically VA Form 21-0958. You have one year form the date of the decision letter to file, and if you miss this deadline then the original decision is irreversible. Your decision letter should tell you where to submit the NOD.
Request a De Novo Review
In this type of review, a Decision Review Officer (DRO) will take a fresh look at your case. The officer does not rely on the original decision, which is completely disregarded. Typically, you can present new evidence to the Decision Review Officer to consider. For example, if your condition has worsened, you can present evidence that it is more severe than initial thought.
If the DRO agrees with you, then he or she can approve your claim and issue a new rating. However, if the officer upholds the original decision, then he or she issues a Statement of the Case (SOC).
This SOC should identify why your claim was rated the way it was or denied entirely. After the SOC is issued, you can either accept the decision or continue to appeal. If you wish to continue to appeal, you typically have 60 days to fill out VA Form 9 and to include supporting documentation. Remember to include everything—medical and factual evidence—and submit this substantive appeal to the address included in your Statement of the Case.
Appear Before the Board of Veterans Appeals
Your appearance can be in person or by video conference. Regardless of which method you select, you might need to wait a long time—typically a year or more. During the hearing, you can offer testimony under oath, though the proceedings will be relatively informal. You can also submit additional evidence that will be placed in your file.
The judge can grant your appeal, deny it, or issue a remand. On remand, the case is sent back to your local VA office to either collect evidence or follow some other procedure. Typically, the BVA issues a remand when it does not have sufficient evidence to render a decision.
Consult with an Experienced Veterans Benefits Lawyer
Because appeals are complicated and drawn out, many disabled veterans give up even if they have valid claims. To help your case, you should work with an attorney who understands the appeals processes and how to build a compelling case. The Comerford Law Office has handled many appeals and is prepared to work for you. To schedule a free consultation, please call 312-863-8572 or submit an online contact form.
