VA Disability Appeals
If the VA denies disability benefits, the applicant has the option to appeal. The appeals process is complex, with various time constraints. However, some veterans can overturn the denial.
After filing an initial application for VA disability benefits, some applicants receive a rating decision from the VA that does not match the true extent of their disability.
The VA could deny a disability, saying that the service member is not disabled at all. Sometimes, the VA gives the applicant a low disability rating that does not reflect their situation. In these circumstances. It may be best for the applicant to initiate the VA appeals process.
What is the appeals process?
Prior to 2019, an appellant could choose between two options: a Decision Review Officer (DRO) appeal or a Board of Veterans appeal. In a DRO appeal, a Decision Review Officer reviews the claim again and decides whether the denial was appropriate.
In a Board of Veterans appeal, the appellant files their claim directly with the BVA, which is the organization that handles any appeals brought against the United States Department of Veterans Affairs.
Traditionally, the appeals process has been confusing, complex, and time-consuming. It would take some appellants years to get through the process. The appellant could be sent back to step one at any time. As a result, Congress went forward with redrafting the process.
In 2017, Congress took steps to modernize its VA disability appeals process. Congress passed the Veterans Appeals Improvement and Modernization Act. This Act disassembled the old process for disability appeals in order to create a better experience for everyone involved in the process.
Three New Options for Review
The new law creates three new options for review that the appellant can choose from. Those three options are outlined below.
When a claim is first decided, it is reviewed by a Veterans Service Representative at the claimant’s regional VA office. If the claimant is not happy with the decision made by the regional VA office, they can appeal for a higher-level review. In this type of appeal, the claim is reviewed by “a more senior claims adjudicator.”
The senior-level adjudicator will review the claim de novo, which means that they will look at the claim with a fresh set of eyes, not considering what the previous decision was.
One drawback of this type of appeal is that the appellant cannot submit any new evidence to bolster their claim. However, the appellant can participate in an informal conference, in which the appellant has the opportunity to talk with the reviewer on the phone. At that time, the appellant can explain why they think the first decision was a mistake and describe any errors made.
According to the VA, this type of appeal will usually take approximately four to five months. However, the VA notes that the appeal process may take longer if the appellant chooses to participate in an informal conference.
In a supplemental claim review, the appellant has the opportunity to provide additional evidence that would bolster their claim that they did not offer in the first round of reviews. The appellant can provide any evidence as long as it is new and relevant.
The VA defines new evidence as any information it did not have when making the last decision. For the evidence to be relevant, it has to prove or disprove something in your claim. In most circumstances, new and relevant evidence will include new medical records from a VA medical facility or other healthcare providers.
On a supplemental appeal, the reviewer will take into account the new evidence and generally have a decision within four to five months.
A board of veterans appeal is the highest level of an appeal. In this case, the appellant’s claim is sent to a Veterans Law Judge in Washington, D.C. These judges are veteran law experts and the most qualified for reviewing an appeal.
When an appellant chooses a BVA appeal, they are given three routes that they can take. First, they can request a direct review. In this circumstance, the Veterans Law Judge will review the claim based on evidence that was already presented. The appellant cannot provide new or relevant evidence like they would in a supplemental claim. A direct review would take about one year to complete.
Second, the appellant has the option to submit more evidence to the Veterans Law Judge. Once an appellant chooses this option, they are granted 90 days to present new evidence they think the Veterans Law Judge should consider. This option will take even longer because the Veterans Law Judge must review more evidence regarding the claim.
Lastly, the appellant has the option of requesting a hearing. At a hearing, the appellant can speak with the Veterans Law judge about their case and have an opportunity to present new evidence. This option will take the longest, usually taking over one year to complete.
LOREM IPSUM
How many times can you appeal?
There is no limit on the number of times a veteran can appeal a VA disability claim.
Do I need a lawyer to appeal?
No. An attorney is not required to appeal, however you may benefit from an advocate or attorney’s counsel due to the complexity of a VA disability appeal.
An attorney or advocate can be extremely beneficial when an appellant is going through the VA disability appeal process. They will have a full understanding of the different time constraints that apply to the process and can help an applicant to navigate the various stages of appeal.
An advocate or lawyer will also have the skills to draft a persuasive appeal. They will understand how to present and highlight appropriate evidence so that the appeals board can understand the full extent of a disability.
Sometimes, the VA makes errors in applying the law when it denies a claim. An attorney or advocate on your side is well suited to present counterarguments to unfair denials.
Lastly, most advocates and lawyers who handle VA disability cases know the complexities of the appeals process. They have research ready to convince the governing body that the appellant is disabled and that the disability requires compensation.
Need help proceessing your disability claim?
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Sources:
- https://www.va.gov/decision-reviews/
- https://www.va.gov/decision-reviews/board-appeal/
- https://www.va.gov/decision-reviews/higher-level-review/
- https://benefits.va.gov/benefits/appeals.asp
- https://www.va.gov/decision-reviews/supplemental-claim/#:~:text=In%20order%20to%20file%20a,date%20on%20your%20decision%20letter
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