14.8. Choosing an Appeal Path
VA will respond to an NOD with a letter acknowledging receipt. This letter will also briefly explain the two options for proceeding with an appeal: the "Post Decision Review Process" and the "Traditional Appeal Process." As the choice of appeal process can have a significant impact on how long it may take to complete the appeal of a claim, claimants should carefully consider the advantages and disadvantages of each process based on the circumstances of his or her claims.
A claimant who has filed an NOD "has right to a review of that decision" by a Decision Review Officer [DRO]." 38 C.F.R. § 3.2600(a). Selecting the Post Decision Review Process authorizes a review of the rating decision by a VA "Decision Review Officer" ("DRO").
A DRO is usually a relatively experienced member of the regional office who is assigned to perform post decision reviews. The DRO reviewer will be an individual "who did not participate in the decision being reviewed" and "will give no deference to the decision being reviewed." Id. A DRO is authorized to perform a completely new review of all the claims decided in the rating decision and make a new decision regardless of the previous results.
The "reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions." Id. § 3.2600(e). A DRO review does not limit the appeal rights of a claimant. Id. § 3.2600(f). A DRO, however, cannot change the parts of a rating decision favorable to a claimant, unless there is a clear and unmistakable error or fraud. This is a very rare type of error, which is discussed elsewhere in this KNOWLEDGE BOOK. If the DRO does not resolve all of the issues raised by a claimant, the unresolved issues shift to the traditional appeal process described below.
If a claimant does not elect a DRO review, VA proceeds with a "traditional" appeal process and is required to prepare and send a "Statement of the Case" ("SOC") to the claimant. An SOC is another explanation for why VA decided the 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 Statement of Case, SOC, can be very lengthy, but should be carefully read. Despite their length, SOC sometimes 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.
This Court has held that:
- "where a decision on one issue would have a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of the decision [on the claim] meaningless and a waste of judicial resources,' the two claims are inextricably intertwined."
- Henderson v. West, 12 Vet. App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet. App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009)); see also Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (holding that, where the facts underlying two claims are "intimately connected," the interests of judicial economy and of avoiding piecemeal litigation require the claims to be appealed together).