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Veterans Law

How to Appeal Your VA Claim

July 30, 2019
lady justice

This week on Facebook Live, Team CCK discussed how to appeal your initial VA claim.  We cover everything from why you might want to appeal a denial on your claim, to appealing a Board denial to the Court of Appeals for Veterans Claims (CAVC).

Introduction to Appeals

A veteran may want to file an appeal if their claim was denied, or if they are not satisfied with the rating and/or effective date assigned by VA.  If a decision is not appealed in a timely manner, it will become final.  For initial claims, there is a one-year deadline to appeal.  You will receive a Notice of Action letter, which is a cover letter to the Rating Decision.  From the date at the top of that cover letter is when the one-year appeal window starts.  If you miss that deadline, then the decision becomes final and you will have to file to reopen your claim.  There are two main reasons to file an appeal within that deadline:

  • You do not have to file a new claim; and
  • It preserves the effective date of your original claim, which is important because that is the date VA is going to pay you from, possibly resulting retroactive pay.

In preparing your appeal, first, take inventory of what you need to win your case. For example, you may need to establish a link between your in-service event and current medical condition, or demonstrate the severity of your disability.  Gather all the evidence you need to make a clear and compelling case to VA as to why you are entitled to what you are claiming. Depending on which appeal lane you choose in the new AMA system, you can still file your appeal even if you do not have all the evidence you need yet, and submit the additional evidence later.

Legacy System vs. AMA System

In the Legacy System, you would first have to file a Notice of Disagreement and a VA Form 9 in order for the decision to get reconsidered by the Board of Veteran’s Appeals.  However, if you received a rating decision after February 19, 2019, your appeal will be processed in the new AMA system.  While it is possible to have an appeal pending in both systems at the same time, they cannot be for the same condition.  For example, you cannot have an increased rating for the left knee pending in both the Legacy and AMA systems; it has to be in one or the other.  You could however have the increased rating for the left knee in the AMA system and simultaneously have an appeal for service connection for PTSD pending in the Legacy system. In the new AMA system, there are three options to appeal an initial rating decision: Higher-Level Review; Supplemental Claim; and the Notice of Disagreement lane (also known as the “Board Lane”).

  • Higher-Level Review– This appeal selection will have a more senior-level person at the Regional Office, who was not involved in the original review of your claim, review your case. This person will review all the evidence in your claim file de novo, meaning that he or she will look at it from the beginning.  The higher-level review is not bound by anything from the initial rating decision except for favorable findings of fact; those must be continued throughout your appeal period. This may be the best option for you if you feel that only a procedural mistake was made in your case.  It is important to note that in the Higher-Level Review lane, you are not able to submit new evidence; the reviewer will only focus on evidence already submitted to the record.
  • Supplemental Claim– This appeal lane allows the veteran to provide new and relevant evidence in support of the claim. This is the only appeal lane that at the regional office level to provide new evidence.  It is best to submit additional evidence as soon as possible or at least identify the evidence so VA can obtain it for you, like VA treatment records, private treatment records, and so on.  In the Supplemental Claim lane, VA has the duty to assist the veteran in obtaining evidence in support of his or her claim.  The Supplemental Claim lane may be the best appeal option for you if you have additional evidence to submit.  When determining which appeal option is best for you, take a look at the initial Rating Decision to see what evidence VA identifies as missing.  The rating decision should include this information to assist the veteran in supporting his or her claim.  This is the only appeal option for which h duty to assist applies.
  • Board of Veterans’ Appeals/Notice of Disagreement– After filing a Notice of Disagreement in the Legacy appeals system, veterans often had to wait lengthy amounts of time before receiving a Statement of the Case from VA.  Then, veterans had to file a VA Form 9 within 60 days in order to notify VA that they wanted their appeal to be reviewed by the Board of Veterans’ Appeals.  This process took a significant amount of time such that many veterans were waiting years before receiving a decision from the Board on their case. In the new AMA system, filing a Notice of Disagreement appeals your case directly to the Board. Within this appeal lane, there are three different dockets to choose from:
    • Direct Review Docket– Consider this docket if you do not want to submit additional evidence and do not want a hearing before a Board member (sometimes referred to as Veterans Law Judges). The Board’s decision will be based on a review of the evidence of record at the time of the previous decision made by the Regional Office.
    • Evidence Docket– This docket allows you 90 days to submit additional evidence following your selection of this option.
    • Hearing Docket– If you select the Hearing Docket, you will be allowed to attend a hearing before a Board member in Washington D.C. or by video conference. You are also able to submit evidence at the hearing or within 90 days after the hearing.

There are pros and cons to the different dockets, one of which being the it will take for the Board to review your case.