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6.3. Administrative Appeals
When a veteran applies for any type of benefit (for example, disability compensation, outpatient treatment, hospitalization, and prosthetic appliances, etc.) which a VA facility denies in whole or in part, that veteran or accredited representative has the right to appeal the denial decision, which is known as due process. When a VA health facility or the Health Eligibility Center (HEC) determines that a veteran is not legally entitled to the benefits sought, the veteran or his or her accredited representative must be notified in writing of this decision.
The VA facility or HEC must include VA Form 4107, Notice of Procedural and Appellate Rights (http://www.va.gov/vaforms/va/pdf/VA4107.pdf), with each denial letter. This form advises a veteran of their right to appeal the decision made by the VA facility or the HEC, the time limits for filing the appeal, the veteran's right to representation and all other pertinent facts relating to the appeal process. VA must also include VA Form 4107 when denying a private healthcare provider's request for reimbursement. Private healthcare providers also have the right to appeal a denied claim.
A veteran, medical provider or the veteran's accredited representative, such as an attorney, fiduciary or an estate representative for a deceased veteran, may send a written statement, disagreeing with a factual or legal conclusion of the VA. There is no set wording or form necessary, and the statement does not have to make specific allegations of error of fact or law. It is not material that the claimant's contentions may appear to have no merit.
The written statement may contain wording such as:
Please consider payment of my bills, this was an emergency, the VA hospital was called and they told us to go to the nearest hospital
or other similar statements. These statements may be considered as a NOD and the NOD must be signed and dated by the veteran or duly appointed representative. A complaint letter will not automatically be considered to be a NOD.
Although the minimum requirements for a NOD are established by law, there is no specific VA form required to submit a NOD. Although many claimants use VA Form 21-4138 (Statement in Support of Claim), a NOD can be as simple as a letter to the regional office. Whatever means is used, a NOD must be dated, state the date of the rating decision with which the claimant disagrees, and be signed by the claimant or the claimant's VA-accredited representative. A claimant does not have to give any reasons for disagreeing with the decision, although he or she can do so. It is also good practice to specifically put "NOTICE OF DISAGREEMENT" somewhere in the NOD.
It is also extremely important that a NOD be filed with the correct office or facility. NOD's regarding a change in status from copay exempt to copay required should be filed directly with HEC and not the facility providing care. If a veteran sends or takes it to their local facility, the local facility should forward it to the HEC for processing and the issuance of a Statement of the Case (SOC).
Remember if VA denies you a benefit they should inform you where you should submit your NOD. If you are unsure whether you should submit your NOD to your local VA facility or the HEC play it safe and submit it to both. As always submit your NOD in some manner that allows for tracking receipt by VA.
A NOD must be filed within one year. The year to file a NOD starts on the date on the VA letter forwarding the rating decision, which VA presumes to be the mailing date. The NOD must be postmarked within one year of the date of the VA letter forwarding the decision. Where the date on the VA letter is much different (earlier) than the postmark on the envelope, there is a chance that VA may allow a NOD within one year of the postmark date. There is absolutely no reason to risk an appeal in this way as a NOD can and should be submitted as soon as possible following an unfavorable decision. DO NOT WAIT ANY LONGER THAN NECESSARY.
If the claimant does not file a NOD within one year of the date of the adverse rating decision, the decision becomes final. If this occurs, under most circumstances any benefits for the period since the application was filed are lost and cannot be recovered. The exceptions to finality rule are discussed elsewhere in this KNOWLEDGE BOOK.
Once VA receives the NOD they should send the claimant or representative or both a letter, stating that the NOD was received and that the appeal process will be initiated. This step is not required but some VA facilities follow this practice.
A veteran may request that the VA facility reconsider their request or they may appeal directly to the Board. The veteran has 60-days from the initial denial to submit a reconsideration request; however, the file can be reopened during the one year period from the initial date of the denial.
Any reconsideration should be made by the immediate supervisor of the initial VA decision maker.
The immediate supervisor should review the entire record, including the claimant's statement on the NOD, to determine if additional development is needed. The supervisor should also attempt to obtain any evidence the claimant indicates is available or that the VA failed to attempt to obtain previously. Additionally they should correct any previous oversights that may be discovered and take necessary steps to assist the claimant in developing the evidence needed to substantiate the appeal including:
- Obtaining medical documentation and reports from private healthcare providers
- Obtaining service department or VA records
-Obtaining Vocational Rehabilitation records
After reviewing the entire claim and associated evidence a written decision is rendered that will affirm, reverse or modify the initial decision.
To convey their decision to the veteran the VA will issue a Statement of the Case (SOC). An SOC is another explanation for why VA decided the issue or issues the way it did. For each claim appealed, the SOC must contain a description of the evidence considered by the VA in making the decision, the VA regulations applicable to the decision, and an explanation of and reasons for the decision.
A SOC can be very lengthy, but should be carefully read. Despite their length, SOC's sometime contains errors of fact or law or are otherwise inaccurate. Claimants should review the SOC in order to identify any errors which could affect the appeal.
The SOC may be divided into the following sections:
-Cover page containing notice to the appellant
This gives directions to the claimant about the appeal, when to submit the substantive appeal and information about representation.
This states the specific benefit or benefits that were denied by VA
Summary of the Evidence
Should list the veterans' service branch, dates or active duty military service, any service-connected disabilities and the effective dates. In chronological order every action taken from the date the benefit was sought or treatment provided to the date the Statement of the Case was prepared. VA will not necessarily go into great detail of each event since all records and documents will eventually be made available to the Board if necessary.
Pertinent Laws and VA Regulations
A listing of the specific Code of Federal Regulations or U.S. Code sections VA relied upon when making their decision.
Restates the issue and the VA's decision to grant or deny.
Reasons for Decision
Fully explains how the decision was reached and how evidence was applied according to cited regulations. Explain why the veteran was or was not eligible for the benefit sought.
The original SOC should include a signature section listing who prepared the decision with date, printed name, credentials, signature of the person who prepared the SOC and "approved by" with date; printed name and signature of the approving official.
VA will then forward a copy of the SOC to the veteran along with a VA Form 9 (http://www.va.gov/vaforms/va/pdf/VA9.pdf) and instructions. A copy should also be sent to the veterans representative if applicable. To "perfect" an appeal the VA Form 9 must be filed with the office or facility that issued the SOC. By statute, a claimant must perfect an appeal within 60 days after the date of the SOC cover letter or within one year from the date of the initial rating decision that is being appealed, whichever is longer. If a claimant does not meet this deadline, the rating decision will become final. A claimant must use a VA Form 9 to perfect an appeal. Not using this form risks rejection of the appeal.
After an appeal has been perfected the local VA facility or office must take certain steps which include reviewing the entire record and take appropriate action such as:
-Award the benefit sought
-Uphold the denial
-Determine the appeal is deficient in either information contained, fact or law and advise the claimant and any representative of the deficiencies. VA will usually provide the claimant with a certain time period in which to respond if they can help cure the defects.
-Prepare case for review by the Board
-Prepare a Supplemental Statement of the Case (SSOC) if it discovered that the SOC contained a material error or the claimant submitted additional evidence.
The claimant will then have 60 days from the date of mailing the SSOC to respond. A response to the SSOC is optional and is not required to perfect the appeal. At the expiration of the time period the appeal will be certified to the Board. In many cases it can take years for an appeal to be certified to the Board. Be prepared for a marathon and not a sprint.
The Board is an independent organization within VA that has jurisdiction to review all factual and legal issues in a rating decision without considering how the VHA decided the issues. The Board consists of a Chairman and approximately sixty members who are designated as a "Veteran Law Judge" ("VLJ"). Although historically the Board sat in panels of three members, the typical appeal is now decided by a single VLJ.
An appeal can be resolved "on the papers" or following a hearing with a VLJ. Hearings can either be in person in Washington, DC, or at a local regional office or by video conference. Before the Board, a claimant (technically an "appellant" once the appeal is certified) can represent himself or herself or can be represented by a person of his or her choosing, including a service officer, non-attorney agent, or attorney. Board hearings are informal and a claimant can submit written material, such as a summary of the claimant's argument, for consideration by the Board.
The Board is required to review all the evidence presented to it and issue a written decision. The Board can grant or deny a claim, or remand (send back) all or part of a claim to the regional office or the Appeals Management Center ("AMC") for further development. The AMC is an office in Washington, DC, that VA uses to assist regional offices on appeals were the claimant is self-represented or has designated a Veterans Service Organization ("VSO") as his or her representative. A Board decision is required to be written and identify the "reasons and bases" for each conclusion. The Board's reasons are important because inadequate reasons and bases are the most common ground for challenging a Board decision denying an award.
If the Board agrees with a claimant now called an "appellant" and orders an award, the claims file is returned to the regional office, possibly via the AMC, for processing of the resulting benefit payment. Action by the regional office also may include deciding any issues that were not resolved by the Board. For example, if a claim was initially denied and the Board ordered an award, the regional office will need to determine a numerical rating and effective date before payments can begin. In addition, even if the Board decided all the issues for an award, only the regional office can authorize payments. So, unless the Board denies all aspects of an appealed decision, the C-file must be returned to the regional office for additional action.
If the Board agrees with a claimant that the decision contained errors but is not sure whether or not an award should be granted, it will order the rating decision withdrawn and require the AMC or regional office or other VA facility to take specific actions to further develop the claim. While not an award, a remand provides a claimant a further opportunity to provide additional evidence in support of his or her claims. Additionally, a remand means that there will be further delay in resolving a claim.
A claimant disappointed by a Board decision can request the Board "reconsider" or "vacate" its decision. The Board rarely grants reconsideration. If it does, the Board decision will be withdrawn and a new decision issued. A motion for Board reconsideration can be filed at any time.
A disappointed appellant can also appeal an unfavorable Board decision to the Court of Appeals for Veterans Claims, known as the "CAVC" or "Court." The CAVC was established by Congress in 1988 to provide a further level of review for claimants denied benefits. The Court exists primarily to review Board decisions for legal errors. As a practical matter, this means that a claimant-appellant must identify a legal error in a Board decision to win an argument before the Court. Simply disagreeing with a Board decision is not enough to win an appeal at the Court.
Unlike a motion for Board reconsideration, an appeal to the Court has a very specific period in which to file for Court review. To appeal to the Court, an appellant has 120 days from the date of mailing of the Board decision to file a "Notice of Appeal" at the Court, not the regional office or the Board. As many veterans have sadly learned, the Court takes this 120-day period very seriously and strictly enforces it. A claimant-appellant wanting to appeal a Board decision should file his or her Notice of Appeal as soon as possible to avoid missing this deadline. VA cannot appeal a Board decision.
The process at the Court is very different than at the regional office or Board. The VA Secretary is now formally an "opposing party" and will argue against the claimant-appellant's position in an adversarial legal action. This means, among other things, that it is now the claimant-appellant's duty to identify the legal basis for his or her appeal and why the Board decision is wrong. Claimant-appellants are also responsible for meeting all the Court's deadlines and following the Court's rules. In other words, VA will no longer assist the claimant in his or her case. So, while claimants can and do represent themselves before the Court, it is much harder to do effectively than when the claim is being developed.
Once a number of procedural matters are completed a claimant-appellant submits a Brief, the Secretary submits his Brief, and the claimant-appellant can submit a Reply Brief. Initially, a single judge is assigned to each case. If one or more of the issues in the case is deemed significant enough, the Court assigns a three-judge panel to decide the case. Oral argument can be requested and, while not common, is scheduled for significant issues.
In its decision, the Court will either (1) affirm (agree with) the Board, (2) remand one or more issues for further development, or (2) reverse (overrule) the Board. Reversals are rare, with the most common result being either affirmation of the Board decision or remand for further consideration by the Board of one or more issues. As with the Board, the Court does not calculate awards or authorize payments, so even if a claimant-appellant wins a fully favorable decision at the Court, the decision and the C-file must be returned, first to the Board and then to the AMC or regional office from which it came.
Either the claimant-appellant or the Secretary can appeal an unfavorable CAVC decision to the Court of Appeals for the Federal Circuit and, after that, to the United States Supreme Court. Appeals to these courts are significant and expensive actions that need to be carefully considered. For those reasons, VETSFIRST does not recommend claimants undertake such appeals without competent legal advice and representation.