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Veterans Law

Finality of VA Decisions: Legacy Appeals System vs. Appeals Reform

Kaitlyn Degnan

April 27, 2018

Updated: November 20, 2023

Final VA decisions

Finality of VA Decisions: Legacy Appeals System vs. Appeals Reform

Decisions handed down by VA become final after their appeal period has ended. In the Legacy appeals system, appeal periods vary depending on what type of decision the VA issues. However, under Appeals Reform, there is more uniformity in regards to the time frames involved with appealing unfavorable decisions. In both cases, if a claimant does not appeal within the given time frame, the VA decision becomes final.

Appeal Deadlines in the Legacy Appeals System

After filing an initial claim, the VA Regional Office will issue a Rating Decision either granting or denying the benefits being sought. If a claimant disagrees with this VA decision, they have one year from the date of the notification letter sent with the decision to file a Notice of Disagreement. If the one-year period passes, the rating decision becomes final and the claimant must then reopen their claim.

If a claimant files a Notice of Disagreement within the one-year appeal period, the VA will likely issue a decision called a Statement of the Case. In order to appeal this decision, claimants must file a VA Form 9, appealing their case to the Board of Veterans’ Appeals in Washington, D.C. Claimants only have 60 days to submit the VA Form 9 to the Regional Office. If they do not file the VA Form 9 within the 60 days, the VA’s decision in the Statement of the Case becomes final.

If the Board of Veterans’ Appeals denies a claim, the claimant has 120 days to appeal their decision to the Court of Appeals for Veterans Claims (CAVC). If they do not appeal, the Board’s decision becomes final and the claimant must reopen their claim at the Regional Office.

Reopening a Claim After a Final Decision in the Legacy Appeals System  

In the Legacy system, if a claimant wants to pursue entitlement to a benefit after a VA decision becomes final, or if they miss an appeal deadline, they must reopen their claim. Veterans can reopen a claim by filling out a claim form and requesting to reopen their closed claim. However, claimants must include “new and material evidence” in order for their case to be reopened.

For evidence to be considered “new,” it must be submitted to the VA for the first time, meaning VA does not already have it. In order to be considered “material,” evidence must be relevant to the reason or reasons why the VA previously denied the claim. In order for the claim to be reopened, VA must establish a favorable finding in regards to the new and material evidence that is submitted, meaning, VA determines it meets the evidentiary threshold set forth.  In the Legacy appeals system, it is VA’s general practice not to disturb favorable findings in relation to new and material evidence.

Appeal Deadlines under Appeals Reform

Under Appeals Reform, there will still be a Rating Decision after every claim is filed.  However, if a veteran disagrees with VA’s decision, he or she has one year to appeal via one of the following three lanes: the higher-level review lane, supplemental claim lane, or Notice of Disagreement lane (i.e. appeal to the Board).  There are an additional three lanes at the Board that veterans must choose from including the direct docket, hearing docket, and evidence docket.  The proposed regulations under Appeals Reform are similar to the Legacy appeals system in regards to the finality of decisions.  Specifically, a decision will become final if the veteran does not appeal within the appropriate time frame.  However, the main difference between the Legacy system and Appeals Reform is that veterans will have one year to appeal no matter what type of decision they receive, whether it is a higher-level review decision, a Board decision, or a supplemental claim decision.  The only exception is if a veteran chooses to appeal a Board decision to the CAVC or a CAVC decision to the Federal Circuit, in which the appeal period will be the same as it is in the Legacy appeals system (i.e. 120 days and 60 days, respectively).

In the new appeals system, effective dates are based on the date of the substantially complete initial claim, the date of the supplemental claim if filed more than one year after a final decision, or the date entitlement arose.  If continuously pursued, the effective date is preserved.  When a decision becomes final, veterans will lose their effective date since the claim will no longer be continuous.

Are Board Decisions Final?

Board decisions are still final on the date they are issued as Appeals Reform does not propose any changes to the regulations here. Both the Legacy appeals system and Appeals Reform allow claimants to challenge final Board decisions by appealing to the CAVC, filing a motion for reconsideration, or filing a  “clear and unmistakable error” (“CUE”) motion.

To challenge a final decision based on CUE, a claimant must believe that VA misapplied the law when making its decision. Here, he or she can argue that the original decision was wrong. However, proving a CUE is extremely difficult for claimants.  CUEs can only be filed for a decision that is final, meaning a decision that the claimant did not appeal. There is no statute of limitations on filing a CUE claim, so claimants can allege a CUE any time following a final decision.

However, in addition to those shared options mentioned above, Appeals Reform also allows veterans to submit a supplemental claim following a final Board decision.  A supplemental claim may have the Agency of Original Jurisdiction reviewing the same issue, but with new and relevant evidence that was not before the Board at the time of the Board’s decision.  Under Appeals Reform, a favorable finding regarding new and relevant evidence is binding on all of VA and will be listed on decision notification letters.  Such favorable findings are only rebuttable by clear and convincing evidence.  Additionally, an unfavorable finding that new and relevant evidence has not been submitted is a separately appealable issue.

Overall, a previous Board decision remains final insofar as it is the final determination on the evidentiary record before the Board at the time.  The new and relevant evidence will provide for a new decision, while allowing the effective date to be preserved if the supplemental claim was submitted within one year of the Board decision.

About the Author

Bio photo of Kaitlyn Degnan

Kaitlyn joined CCK in September of 2017 as an Associate Attorney. Her practice focuses on representing disabled veterans before the United States Court of Appeals for Veterans Claims.

See more about Kaitlyn