14.11. Appeals Process & Tips
- The VA has two appellate decision makers. Each VA Regional Office (VARO) has one or more Decision Review Officers (DRO). The DRO reviews the claim basically from scratch and without any deference to the VARO's adjudicator's decision. The DRO has the authority to modify a VARO claims decision by either granting benefits or ordering additional development of the evidence and readjudication.
- You can expressly request review of your decision by a DRO in your NOD. You and your representative, if any, may appear in person before the DRO to explain why you believe that the VARO's decision is wrong, or you may submit a written explanation of your position, or both.
The VA's highest appellate body is the Board of Veterans' Appeals, (BVA) located in Washington, D.C. If you do not request a DRO review in your Notice Of Disagreement, the VA will send you and your representative, if any, a letter that acknowledges receipt of your NOD and asks whether you desire a DRO review or would rather have your appeal forwarded to the BVA for consideration.
TIP: We recommend that you seek DRO review before you request a BVA appeal. The DRO process frequently results in a favorable decision and is generally much faster than going directly to the BVA. If you do not receive a better decision from the DRO, you can still appeal to the BVA.
If the DRO does not award benefits, or if you request BVA consideration instead, the VA will issue a "Statement of the Case" (SOC). The SOC is the VARO's explanation of the reasons why it decided your claim(s) as it did. It contains a discussion of the evidence considered, the relevant laws and regulations and an analysis of the application of the law to the facts surrounding the claim. If you submit, or the VA acquires, new evidence concerning your claim after it has issued the SOC, the VARO will consider that evidence and will make a new decision. It will then issue a Supplemental Statement of the Case (SSOC) that will explain its decision, much like a SOC will.
TIP: Read the SSOC carefully. If the evidence considered after the SOC was issued raises a new claim, one that was not included in the decision on appeal, and that claim is denied in the SSOC, you must file a new NOD with respect to that issue in order to include that claim in the pending appeal.
The SOC is significant for two reasons. First, it provides the basis on which you can attack the VARO's decision if the VA's interpretation of the evidence or the law is flawed. Second, it triggers the deadline for "perfecting" an appeal to the BVA, which provides the BVA with jurisdiction to consider the appeal.
You have 60 days from the date of the SOC (or the SSOC) or the remainder of the one-year period after the VARO's initial notice of its decision, whichever is later, to file a substantive appeal to the BVA using VA Form 9. This form is available on the VA's website.
Click here to view or download form.
You must list each claim or issue that you want the BVA to review in your substantive appeal to the BVA, and you should explain the reasons why you are appealing the VARO's decision. You can also indicate that you or your representative will subsequently submit a more detailed legal argument in support of the appeal.
TIP: Be sure to file your substantive appeal to the BVA with the VARO, and not with the BVA directly,
The BVA can extend the deadline for filing a substantive appeal only for good cause shown, however, it's better to file the substantive appeal as soon as possible to avoid risking a denial of the extension of time. An untimely substantive appeal will strip the BVA of jurisdiction to consider the appeal.
You will have the opportunity to request a personal hearing before the BVA prior to its deciding your appeal. You may elect to:
- Come to Washington, D.C., and appear before the Veterans Lay Judge (VLJ) in person.
- Request an in-person hearing at the VARO regional office (but you will have to wait until a VLJ is scheduled to visit that VARO).
- You can request a video conference hearing. The hearing will be on the informal side, with the VLJ listening to you or your representative's arguments in favor of the claim and asking you questions directly.
TIP: Statistically, there is a slightly higher chance that the appeal will be granted if you appear for a personal hearing. However, there is always a risk that you might say something detrimental to your claim or exhibit a behavior which may negatively influence the VLJ.
Personal hearings are advantageous in claims that involve factual issues (e.g., accidents or injuries during service, when symptoms began or how severe they currently are). Nevertheless, since lay claimants do not have the medical training and expertise necessary to provide credible testimony on medical issues, a personal hearing where the outcome depends on medical evidence would be of little value (e.g., establishing a diagnosis, medical nexus or service-connection for a secondary disability).
Whether or not you elect a personal hearing on appeal, you will have the opportunity to file a written statement with the BVA in which to argue your case for a full award of benefits.
TIP: It is always advisable to have the assistance of an experienced veterans service representative who can prepare and submit a detailed legal argument on your behalf. If you chose to represent yourself, however, you can use the SOC and any SSOC to become familiar with the laws and regulations that govern. Remember that it is not enough to merely disagree with the VARO's decision. You must point to the evidence in the record that rebuts or discredits the evidence that the VARO relied on in its decision, including military medical records, VA health care records, private health care records, physicians' opinion letters, statements from lay individuals on non-medical matters, Social Security records and decisions, and other related documentation. You should also point out if the VARO misapplied or failed to apply a relevant law or regulation.
On appeal, the BVA can take one of three actions.
- It can grant the claim and award the benefit(s) sought.
- It can uphold the VARO's decision and deny the claim.
- If the VARO committed either a substantive or procedural error, the BVA can also remand the claim to correct the error.
A remand decision is an order from the BVA to a lower VA decision maker to take some action that is necessary to readjudicate the claim properly. Often, this involves further development of the evidence (e.g., conduct a medical or psychiatric examination, obtain medical records from the claimant's doctor(s) or secure other relevant evidence), or to cure a procedural defect (e.g., the VARO did not issue a SOC/SSOC or provide the claimant with a legally required notice). Remand orders are usually directed to the VA's Appeals Management Center (AMC) for action, although sometimes claims are referred to the VARO. BVA decisions that either grants or denies a claim are considered to be final decisions. A remand decision, however, is not.
OK. You have just received a copy of the BVA's decision in your appeal. Hopefully, the BVA has overturned the VARO's decision and granted your benefits in full. But suppose that the BVA improperly affirms the VARO's decision without granting benefits or commits some other error that results in less than a full award of benefits.
Since the BVA is the last stop at the VA for claims decisions, where can you go? Prior to 1988, a claimant who was denied at the BVA simply had to accept that decision. The BVA had the last word. In 1988, however, Congress passed a law that created a special federal court to consider appeals of adverse BVA decisions. The U.S. Court of Appeals for Veterans Claims (CAVC), formerly the Court of Veterans Appeals, has exclusive jurisdiction to review appeals of final BVA decisions. This includes claims denials, partial grants of benefits and inadequate awards of benefits, but does not include remand decisions.
TIP: Before filing a court appeal, there is still one last opportunity to have the BVA reconsider its decision. The appellant (i.e., the person filing the appeal) can request the BVA to reconsider its decision. Whether a motion for BVA reconsideration granted is at the BVA Chairman's discretion. The request for reconsideration must be in writing and must specify an "obvious error of fact or law" that led to the improper decision. Again, you must point to evidence of the record or a specific law or regulation that you believe the BVA either ignored or misapplied. Newly discovered service medical records or previously unconsidered changes in service records by a board for the correction of military records are examples of evidence that can support a BVA reconsideration. If the Chairman grants reconsideration, the original BVA decision is nullified and a new decision will be issue based on the reconsideration request. If the request is denied, it's time to go to court!
Similar to the requirement of filing a substantive appeal to the BVA, you must file a notice of appeal (NOA) with the CAVC to confer jurisdiction on the court. The deadline for filing a NOA with the CAVC is 120 days from date that the BVA mails its decision to you. The mailing date is legally presumed to be the same date that appears on the front of the BVA decision. The NOA should be filed with the CAVC, not the VARO or BVA.
The Court's address is:
Clerk, US Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
The NOA must be post-marked by the U.S. Postal Service (rather than self-metered or shipped privately) within the 120-day period in order to be considered timely. If the deadline is approaching, you may fax the NOA to the CAVC clerk's office at (202) 501-5848.
There is a specific NOA form that is available at the CAVC's website, http://www.uscourts.cavc.gov/forms_fees.php You do not need to argue your case in the NOA, but you will need to indicate the date of the BVA decision that you wish to appeal. There is a $50 filing fee for appealing to the court, which can be waived if payment would cause financial hardship. The court's Form 4 (Declaration of Financial Hardship), is also available on its website. Either the filing fee or the declaration must accompany the NOA.
If you are unrepresented at the CAVC and miss the NOA filing deadline, there are limited rules that allow the court to consider the circumstances leading to the late filing. For example, the court will "equitably toll" the filing deadline if the appellant's medical or physical condition prevented the NOA's timely filing.
You do not need to have an attorney to represent you before the CAVC, although it is highly advisable. The non-adversarial relationship between a claimant and the VA ends with the BVA's decision. Once an appellant literally makes a "federal case" out of it, the parties become legal adversaries and the VA's attorneys go to work. If you do not have an attorney when you file your NOA, the CAVC will provide you with information about the Veterans Pro Bono Consortium (www.vetsprobono.org). The Consortium can review your appeal for judicial merit and, if it agrees that the BVA decision is in error, it will assign your appeal to one of its volunteer attorneys without any charge or fees.
The CAVC process often takes a year or more to complete. Some cases have actually gone on for two to three years. Once the parties agree on the contents of the record on appeal (which can take many months), the parties will file their initial, and possibly supplemental, briefs. Unrepresented appellants are allowed to file an informal brief on the court's designated form. It is possible that the CAVC could schedule the appeal for oral argument, although it will issue a call for attorneys to volunteer to represent the appellant in such cases, or it will ask interested parties to file amicus curiae (friend of the court) briefs in favor of the appellant and to appear at oral argument.
If the VA's attorneys agree that the BVA erred in its decision, they may contact the appellant or appellant's legal counsel, if any, to discuss a joint motion for the court to remand the appeal to the BVA for readjudication. A joint motion for remand is not a legal settlement, but, rather, the VA's acknowledging the error and both parties' requesting that the Court allow the VA to correct the defect without the need for full briefing and a formal decision by the Court.
On appeal, the court can reverse the BVA decision and grant benefits, affirm the BVA decision and continue the denial or partial grant, or it can remand the appeal to the BVA. Typically, the CAVC will remand on the narrowest possible grounds, meaning that it will not address all assignments of error if one will do.
If an appellant wants to appeal an adverse CAVC decision, he or she must file an appeal to the U.S. Court of Appeals for the Federal Circuit. At this point, the attorneys for the U.S, Department of Justice take over representing the government. The Federal Circuit is not the best place for an appellant to be unrepresented by legal counsel. A lawyer is almost always necessary to prevail at this level.