The VA appeals process is complex and it can be difficult to navigate. Whether a veteran should file a supplemental claim, a Notice of Disagreement or get a Higher Level Review largely depends on why the veteran is appealing and their specific circumstances and goals. Deciding which path to take an appeal is an important step in the process and each has benefits and drawbacks. Certain types of appeals are decided faster, and some have higher rates of favorable outcomes than others. Here, our Veterans benefits and appeals attorney shares some insight into each option. Click below to see Sean Kendall's full conversation with YouTube's VA Madness.
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Supplemental VA Claim
A supplemental claim is an appeal to the Regional Office where the original claim was denied. This type of appeal allows a veteran to submit any new evidence for their claim and is typically decided quickly - within 2-3 months (as estimated by the VA), which is significantly faster than some other options. If a supplemental claim is filed within one year of the denial, the original effective date applies. However, supplemental claims can also be filed after this point in order to submit new evidence and will receive a new effective date.
Types of VA Claim Reviews
Higher Level Review (HLR)
If either the supplemental or the original claim was denied, one option for an appeal is a Higher Level Review. This is the fastest option for an appeal, usually decided in 60 days or less. An HLR enables a specialized VA office at the regional level to review the claim as it was originally submitted, so no new evidence can be added. This type of appeal is useful in specific scenarios where the VA has made a mistake, or failed to answer a question relevant to the claim. HLRs are very useful if a medical examination was not conducted or was inconclusive in regards to service connection to a disability. They can also be useful to get a slightly higher rating on a service-connected disability, or if time is an issue as these are conducted very quickly.
Notice of Disagreement (NOD)
A Notice of Disagreement takes a claim to the Board of Veterans' Appeals (BVA). This is a board of highly experienced judges at the national level located in Washington DC and has a very high rate of favorable outcomes for veterans. The grant rate here is over 50%, particularly if the veteran is represented by a lawyer, and another 30% of cases are remanded back to the Regional Office for further consideration. It is important to note that veterans should be very careful what they list as the specific issue they are claiming at the BVA. If an issue is left out, the BVA will not address it and the veteran will have to file a new claim.
Methods of Appealing VA Claims
Veterans appealing to the BVA can choose between three lanes.
1. Direct Review
This is the fastest option and best for a fully developed claim with all the necessary evidence already included in the file. Direct Reviews do not allow any new evidence to be submitted or testimony to be given. This type of review typically takes about a year.
2. Evidence Submission and Review
This lane allows medical evidence to be presented to the BVA. This is especially useful if the medical opinion provided by the VA is unclear but there is good medical evidence to grant the claim. All evidence must be submitted within 90 days of filing for this type of appeal and that deadline cannot be extended so it is important to gather all evidence before filing for this type of review.
3. Hearing
A Hearing allows evidence and testimony to be given live, in front of a judge. The advantage of this is the veteran can explain their experience more fully and answer any questions from the judge, making their claim harder to refute. Hearings are also beneficial because evidence can be submitted anytime between the day of the actual hearing and up to 90 days after.
This gives the judge the most up-to-date information and allows the veteran to ask and answer any remaining questions from the judge after the hearing. For example, a veteran can ask a judge if their medical opinion is sufficient to grant their claim, and if not, has the opportunity to get a new one in the 90 days following the hearing. They may also find experts in the field or medical articles which support them. Hearings have a very high grant rate, but veterans regularly wait over 2 years for their hearing date, and months for a decision, so it is a long process.
What to Expect After a Favorable BVA Decision
Many cases will be sent from the BVA back to the Regional Office for a rating decision or a decision on the effective date implementing a BVA grant of benefits. If the BVA chooses to remand a case back to the Regional Office where it is later denied, the veteran must start the appeals process over again. Their effective date remains intact but there will be significant delays as they lose their place on the docket. In this case, it can be a good idea to file a supplemental claim or get a Higher Level Review, but often another BVA appeal is necessary.
BVA Denials
In the case of a denial from the BVA, a veteran has one year to submit a supplemental claim with their Regional Office in order to preserve the effective date for their claim. A veteran may also choose from the following options to appeal the decision
Court of Appeals for Veterans Claims (CAVC)
A veteran has 120 days to file a Notice of Appeal to the CAVC after their BVA denial. This notice does not need to include the reasons for the appeal. Many lawyers will represent veterans free of charge in this court. It is important to note that only accredited lawyers are licensed to represent a veteran in the CAVC and it is highly beneficial to have an attorney represent you in court.
BVA Reconsideration
There is a very high standard to get a reconsideration. This is only a good option if a lawyer or trained representative identifies an error of law in the decision, or if the veteran needs more time to file an appeal with the CAVC. Getting a BVA Reconsideration stops the 120 day clock to file a CAVC appeal, so this can buy a veteran some time.
Motion to Vacate
If there was a simple error in a case, such as a document in the file being overlooked, this is a fast way to appeal the decision and correct that mistake.
General Tips for Appeals
- Use the electronic tools provided from the VA to upload documents and evidence
- Track any submission made including confirmation from the VA that it has been received. If there has been no confirmation, resend the documents
- Remember that a favorable finding from either the BVA or RO cannot be overturned by the other so these decisions can be used to a veteran’s favor in appeals
- Filing supplemental claims with any documentation the VA would otherwise have to find independently will help speed up the appeals process
A US Veterans' Benefits Lawyer May Help
You have the right to file an appeal if your claim is denied. A Veterans benefits attorney can help you with the appeal process and prove your case. An attorney can also make sure that you have enough evidence for the appeal and file the appeal within the required timeframe.
If you are a Veteran who needs help applying for benefits or appealing a denied claim, contact the office of Sean Kendall, Attorney-at-Law, for a free, no-obligation consultation. We will work to protect your legal rights and help maximize the benefits you deserve. Call us today at 877-629-1712 or use our online contact form to find out more.