DECIDING TO APPEAL

When it comes to appeals, you can either:

  1. a) File a NOD or Notice of Disagreement.
  2. b) File for a De Novo Review with a Decision Review Officer (DRO) to take another look at your claims
  3. c) File a formal appeal to the Board of Veterans Appeals (BVA)

Before deciding which type of appeal to take, it really helps to try and figure out why your claims were denied in the first place because it often dictates which route to take. As part of the Veterans Claims Act of 2000, otherwise known as the VA’s “Duty to Assist” law, the VA must now say in plain English not only why your claim was denied but also why your claims received the ratings percentage that you received and what constitutes a higher rating as well. Many times, it’s extremely obvious that an error has occurred, what the error was, and what was completely overlooked in the evidence. In such cases, a Notice of Disagreement (NOD) is usually the fastest way to go. Of the three options, this is essentially the quickest, especially if it’s a straightforward error that has occurred. When filing a Notice of Disagreement with the VA, it really helps to read over the denial letter with a fine-toothed comb first before deciding on taking that route in the first place. All an NOD does is that it gets the VA to go back over your claim again, with no new information, to make sure they made the correct decision. In many instances these are not always helpful because if the VA said “No” in the first place and then you use an NOD to ask them again without anything new or pertinent, then chances are it will be “No” again! Now on the other hand if for example, in the evidence section of your denial letter, you notice they didn’t list important information which could be helpful to your claims, or they omitted or overlooked evidence, then by filing an NOD pointing out what was overlooked it could get them to overturn their previous decision by simply using an NOD, which takes the least amount of time. Notices of Disagreement (NOD’s) are invaluable especially when it is a “Clear Unmistakable Error” (CUE) – an error that is obvious and easy to point out to the employees at the regional office that has happened within the veteran’s claim and brought about the denial. From the time that the VA sends you a denial letter for your disability compensation claims, you have 1 year to file a Notice of Disagreement (NOD). If that time period lapses then you would have to file a brand-new claim at that point, but most NOD’s are typically filed within the first 30 days or so. It is possible for years to lapse before you file a brand-new claim.

Before filing a NOD, you should troubleshoot where the error happened within your claims to begin with. By reading your denial letter carefully the answer usually will present itself. If you notice errors or areas that were overlooked in your claims, you should note them and then type a letter that begins with:

I, (state your name, DOB, Social) do hereby submit this letter as my Notice of Disagreement based on A, B, C; with A, B, C being your reasons for disagreeing with the decision that has been made in your claims. If you have multiple injuries, you may wish to appeal some but not all the decisions the Regional Office made. In such case, you will need to state which decisions you’re challenging and which ones you’re not. Once completed, you should sign and date the NOD, and submit it through your VSO/County Benefits Coordinator and have them look it over, adjust and to create a chain of custody for the NOD. When filing a Notice of Disagreement (NOD) with the Regional Office, there is need to be aware of what I call the “SOC hole.” The SOC hole is a situation where you get chased down a rabbit hole going back and forth with the Regional Office. You file NOD’s and they respond with a “Statement of the Case” (SOC), then you end up responding with another NOD, only to get another SOC again. This can turn into a ping pong game going back and forth with the Regional Office without yielding any results, only wasting time unnecessarily. For this reason, going for the appeal option might sometimes be a better idea.

The second option you have is to file for what is called a “De Novo Review” with a Decision Review Officer more commonly known as a (DRO). “De Novo” is the Latin expression for “From the beginning or anew” which to the VA means they will take another look at your claims which were denied with a fresh set of eyes using a Decision Review Officer that typically has more experience than the rater who denied your claims originally. Although this option does take longer than a NOD, it oftentimes can be a far more effective way of getting your decision overturned without having to go to the BVA which takes much longer.

While the Decision Review Officer (DRO) does have all your records in front of them, it really helps to request a De Novo hearing as part of the De Novo Review process.  This allows you the opportunity to speak directly with the DRO at the Regional Office. This can oftentimes allow you the opportunity to clear up any questions the DRO may have and it can give you the opportunity to state your case as well to the person who will be making a decision on your claims. For instance, if I was injured, seen and treated in medical for my condition, then after an extended hospital stay filled with physical therapy and under the care of Neurologist, I was medically boarded and eventually medically discharged for the same condition. Since that I have been seen 87 times over the course of 21 years and it has progressively worsened since it began which is well documented. Having a De Novo hearing stimulates you to study your records well and give you the opportunity to tell the Decision Review Officer how your condition impacts your daily life. You could bring up doctors’ notes, and if you have any secondary conditions that stem from the original injury you can stress those as well. In other words, requesting a De Novo hearing allows you to point everything out to the DRO. Additionally, this can cause the DRO to order additional testing as well just as I have seen happen before.

When it comes to De Novo Review hearings with the DRO, it’s all about preparation. Prepare for any type of hearing, whether it is with a VA or Social Security judge to do mock hearings in your head over and over again, and eventually with a loved one. I would try to find easier ways to explain the situation, and to put it into terms that anyone could understand. Your medical conditions may be rare and complex; your illnesses may not be common knowledge. Oftentimes, it takes having to sit down with the Decision Review Officer during the De Novo Review hearing to explain everything and connect the dots so they can understand how all of your illnesses and injuries are interconnected while at the same time service-connected. After undergoing a De Novo Review hearing, you would have to wait to hear from the Decision Review Officer (DRO). The DRO could request additional Compensation & Pension exams when your medically documented issues are in conflict. Over the years I have seen numerous veterans request and receive additional C&P exams through the DRO to counteract previous examination results. If the Decision Review Officer (DRO) requests additional Compensation & Pension Exams (C&P) after your De Novo Review hearing, it can be a great opportunity to get back into the C&P examiner’s office if you had a really bad C&P exam initially which contributed to the denial of your claims in the first place. Oftentimes when veterans first begin to file claims, they make numerous mistakes and errors. While I do understand that the raters and DRO’s make the actual decisions on your claims, they weigh their decisions heavily on what the C&P examiners have said regarding your injuries. Having an additional round of C&P exams can often be helpful, especially when you have properly prepared for them seeing as you now know what to expect and you are in better position to avoid the mistakes earlier made.

On completion of the De Novo Review hearing and any possible C&P exams, it becomes a waiting game to see if you will either win or if you will receive another Supplemental Statement of the Case (SSOC). A Supplemental Statement of the Case (SSOC) as a response to your De Novo Review and will tell you why the VA Regional Office is continuing to deny your claims. If you receive an SSOC then it starts to become apparent that the VA Regional Office is unlikely to change their decision and your appeals are more than likely going to head to the Board of Veterans Appeal (BVA) in Washington DC.

The main reason why it can be beneficial to take your appeal to the Board of Veterans Appeals (BVA) is that it takes your appeal out of the hands of the Regional Office which to this point was decided by VA Raters and Decision Review Officers who are administrative workers and it places your appeal in the hands of lawyers and judges who look at the law and how your conditions relate with the applicable laws. In 2012, 96.1% of all appeals to the Board of Veterans Appeals were for VA disability compensation. Each year on average over 95% of all appeals, are for compensation for service-connected medical conditions. The other 3.9% covers other areas such as Burial Benefits, Education Benefits, Insurance, Home Loan Guaranty Program, Medical, Pension, VR&E, BVA Original Jurisdiction, NCA Burial Benefits amongst others. The reason why 96.1% of appeals are over VA disability compensation is because most of the other veterans’ benefits issues are cut and dried, predictable.

There are two major factors that it takes to win a disability compensation claim.

1) You must establish that a service connection exists, which at times can be very difficult for numerous reasons such as:

  1. The NPRC fire of 1973.
  2. Records were lost.
  3. The injury wasn’t reported in service.
  4. The government hasn’t accepted that your illness was caused by service.
  5. VA employees improperly document your injuries and their severity

2) You have to prove severity.

It’s a difficult thing to try and put a number on any injury or illness. After all, you get to live with this injury each and every day. Therefore, when the VA puts a number on it, you might feel slighted because it’s hard to properly reflect what you go through each day. Many times, veterans end up appealing because they feel that the percentage is too low.

To file an appeal to the Board of Veterans Appeals (BVA), you have to use a “VA Form 9”. When appealing to the BVA, you have the opportunity to have a hearing which can be vital in having your voice heard. While traveling to the BVA in Washington DC is not in the cards for most veterans because of travel costs, you can request a video conference hearing which is the easiest way to have the hearing or you can ask for a travel board hearing in which the BVA judge travels to the Regional Office which often takes considerably longer because they only travel to the Regional Offices every so often due to the costs the VA incurs.

The Board of Veterans Appeals (BVA) was established in 1933 as a way to take a veteran appeal out of the hands of the Regional Office and their administrators and put it into the hands of lawyers instead. While I do like the concept of doing this because many times cases need to be handled by lawyers that interpret how a veteran’s situation applies to the law, the bad part is

Question: How long do you think was the national average time in 2012 that it took to receive a “Statement of the Case” (SOC) from the time that you filed a “Notice of Disagreement” NOD?

how long it takes.

Answer: The national average in 2012 for the amount of time that it took from the time that a veteran files an NOD to the time they receive a Statement of the Case was 270 days on average. While this number may be a bit skewed because in places such as California, Texas and Florida it takes far longer, the important thing is the number because its 270 days which, is far lower than taking it to the BVA. On other hand, in 2012 the average wait time from when you filed a VA Form 9 to the time you received a decision was 1,040 days. That’s just shy of 3 years! This reinforces the fact it takes considerably longer to have an appeal heard at the Board of Veterans Appeals (BVA).  Even after filing a VA Form 9, it is still

Question: What percentage of appeals to the Board of Veterans Appeals (BVA) do you think get REMANDED back to the Regional Office each year?

possible for it to get REMANDED back to the Regional Office for various reasons such as needing more work, more exams, incorrect paperwork, etc. This remand adds an extra 445 days on the average on the appeal time, raising appeal time to about 1,485 days on average from the time you filed your VA Form 9 until the time the BVA makes a decision on your appeals – over 4 years!

Answer: Of all appeals in 2012, 45.8% were remanded back to the VA Regional Offices for more work. 45.8% of appeals have an extra 445 days added onto their appeal time because they are done incorrectly. Therefore, the BVA refuses to hear and settle the case! When you factor in that there are only 4 possible options which are Approved/Denied/Remanded/Other, it means that close to half of all decisions end up just being to remand it back to the Regional Office for more work!

While some veterans are of the opinion that an attorney should be hired for their appeals, here is statistical data: In 2012, attorneys won 30.1% of appeals, a bit higher than the national average which was only 28.4%. Also, in 2012 there were 3 Veteran Service Organizations that had a higher winning percentage with each being free of charge to use. These would be MOPH at 34.4%, AMVETS at 32% and VFW at 30.7%. When it comes to being denied, attorneys did have the lowest percentage denied at 15.7% versus the national average which is 22.5%. Nonetheless, attorneys and agents have another category they win in the percentage battle as well. It’s called REMANDED, in which attorneys have 51.6% of appeals remanded and agents have 52.8% of appeals remanded back to the Regional Office which adds another 445 days onto your appeals time. The national average for remands is only 45.8% versus attorneys and agents’ 51.6% and 52.8% respectively. Keep in mind attorneys and agents typically win a percentage of your back-pay so the longer the appeal takes, the more they stand to make. Criminal, civil, family, real estate, Social Security, estate planning, corporate, personal injury, automobile accident, insurance, constitutional, and the list goes on for the different types of lawyers there are. While there are literally hundreds of types of attorneys who practice in different areas of the law, most in fact do not specialize in VA appeals! Having a friend of the family take on your case because he handled grandpa’s estate when he passed away, or your buddy’s divorce attorney because “he did a great job” rarely ever gets it done! An attorney has to specialize in that area of law before you can entrust your claims appeal to him. After all, I may really like my primary doctor but I would never let him cut me open because he is not my surgeon. A list of accredited attorneys and VSO’s is provided in the appendix.

In 2012 the average processing time from the time that you file a NOD to the time that you receive a SOC was 270 days through the Regional Office (RO). The average time from the time that the Regional Office sends the SOC to the time they receive the VA Form 9 was 40 days. The time from when they receive the VA Form 9 until the BVA’s certification of appeal to the BVA was 692 days on the average. The time between when the appeal was physically received and docketed at the BVA to disposition – meaning cycle time when they work on and decide your appeal) was 251 days. The average remand time factor if more work is needed at the VA Regional Office was 445 days. Perhaps you are now wondering why it takes so long for an appeal to be heard by the Board of Veterans Appeals (BVA). In 2012, the BVA had 510 full time employees, 25 employees less than in 2011 because of federal budget cuts. This is broken down into a Chairman, Vice Chairman, Principle Deputy Vice Chairman, 64 Veterans Law Judges (including 12 Veterans Law Judge managers), 12 Senior Counsels, a Medical Advisor, and more than 300 staff counsel, and other administrative and clerical staff. The Board of Veterans Appeals (BVA) is broken down into 4 decision teams, with each team consisting of a Deputy Vice Chairman, 2 Chief Veterans Law Judges, 13 Veterans Law Judges, 2 Senior Counsel, and approximately 75 staff counsel and administrative personnel. The staff counsel is used to review the record on appeal, to research the applicable laws, and then they prepare the comprehensive draft decisions (or the remand orders) for consideration by the Veterans Law Judge who then reviews the draft and issues either the final decision or the appropriate preliminary order to remand the appeal for further development back to the Regional Office.

As of September 30, 2012, the VA projected there were 22,328,000 U.S. veterans alive that could each in theory have claims and appeals. If you factor in children, spouses, widows and at times even parents that number becomes closer to 70 million that could file claims and appeals. As of January 2013, the entire U.S. population was 315.18 million people which means approximately 22.22% – close to one-quarter of our population could be entitled to at least one veteran’s benefit, which could end up in an appeal. The United States is divided into 4 time zones as well. There are both more judges working in the 9th Judicial District of Florida with 81 judges than work for the Board of Veterans Appeals which has only 67 judges. Additionally, the 9th District has more employees than the 510 total full-time employees that the BVA had in 2012. Bearing in mind the legal system in Florida, the BVA and its staff-strength in comparison to the number of people who could file claims and appeals can be likened to having a legal system that’s been designed to handle a population the size of Central Florida which has been tasked with handling the entire Eastern Time-zone. This explains why the wait times are long.

Once your appeal has been docketed with the BVA there really aren’t a lot of ways to speed up the 3-4 years wait that you’re getting ready to endure while waiting to have your appeal heard in Washington DC. The BVA will only advance cases on the docket if you can show “convincing proof of exceptional circumstances”. This would typically mean terminal illnesses, danger of bankruptcy or foreclosure, or that an error by the VA has caused substantial and significant delay in docketing the appeal. This only works a little less than 15% of the time because almost all appeals to the BVA have hardships associated with them. What you would need to do though is file a “Motion to Advance on the docket”. Then mail it directly to the BVA in Washington DC via the address.

Board of Veterans’ Appeals (014)

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, D.C. 20420

To check the status of an appeal at the BVA, you can call the BVA directly on (202)565-5436. If you call the BVA directly ensure you have your claim/appeal number handy and make sure you’re polite and non-confrontational with the person on the other end of the phone. Being polite and helpful often goes a long way in making a friend that can possibly help rather than an enemy that can harm your appeals.

What if an appeal gets denied? In this case, there are still 3 basic options left, which are:

  • Filing a Motion to Reconsider: To do this you must show that the BVA made an “Obvious error of fact or law in its decision”. Meaning that you must show that the BVA made a mistake, and had that mistake not occurred, the BVA’s decision would have been different. To file a Motion to Reconsider; you will need to file it directly with the BVA in Washington, D.C.
  • Reopening you Appeal: If your claim has “new and material evidence” that was not included in your claims folder when your case was decided, then the VA regional office may decide to reopen your appeal, and start the appeals process all over again. This reopening is conditional for the fact that it is the VA regional office that decides if the evidence is “new and material”. For instance, consider a situation where a veteran has gone through the entire appeals process to raise his disability rating because he lost partial use of both legs which was service-connected. His condition was bad when he originally filed claims, but in the 4-5 years that his claim was stuck in the appeals process, his condition worsened. Then just as his claim was being reviewed by the board, the doctors decided to amputate. His claim was too far along to stop the process, to add this “new and material evidence” into his claims file. The BVA not knowing this new material evidence which would more than likely affect the case’s outcome decided to deny his claim. This would more than likely qualify as grounds to reopen his appeal.
  • Appeal to the U.S. COURT OF APPEALS: This would be your last resort. You must file a notice of appeal to the U.S. Court of Veterans’ Appeals. This is known as “The Court”. This is an independent Federal Court located in Washington D.C. that is not part of the Department of Veterans Affairs. You will need a lawyer if you plan to take your appeal into Federal Court. You only have 120 days from the date that the BVA mails its decision to file “an original Notice of Appeal” with the court. If by chance you filed a motion to reconsider within the 120 days, but the motion was denied, your 120-day clock starts over from the day that the BVA mails you the letter denying your motion to reconsider. If you decide to file a Notice of Appeal with The Court, you can either fax it to (202) 501-5848 or you can mail it to the addresses below. You will only have 14 days to send in the filing fees, or submit a Declaration of Financial Hardship if you are unable to afford the fees, or mail your notice of appeal to:

Clerk of the Court

U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington D.C. 20004

You should also file a copy of the Notice of Appeal with the VA General Counsel at:   Office of the General Counsel (027)

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington D.C. 20420

When filing a Notice of Appeal, it is vital to include your full name, phone number, current address, date of the BVA decision, and docket number. The only types of decisions not allowed to be appealed are decisions concerning the need for certain types of medical treatments, physicians’ decisions to either prescribe or not prescribe a drug. This would need to be taken up with the director of the VA medical center in question.

When going through the process, please make sure that you utilize every part of the process. Do not just skip straight to the BVA if your appeal could end up being won with either a NOD or through a De Novo review. My hope is that each person that takes the time to read this fully understands the importance of trying to resolve each issue before taking it to the next level, largely because of the amount of time involved in appealing it at each level.

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Hosts Mike and Tricia Marino are a retired military family with three children. They retired from the Navy with just over 20 years of service in 2011 and returned from Japan serving as civilians on a Navy base.
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