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Remands from the Board of Veterans’ Appeals Under Appeals Reform

Remands from the Board of Veterans’ Appeals Under Appeals Reform

A Board remand is a type of decision from the Board of Veterans’ Appeals in which it determines that additional information is needed before making a final decision on a veteran’s claim for benefits.

Board Remands in the Legacy Appeals System

In the Legacy appeals system, when a veteran files a VA Form 9 in response to a Statement of the Case issued by the VA Regional Office, their claim will go to the Board to be reviewed by a Veterans Law Judge.  The Board will then look through the veteran’s file, consider all of the evidence submitted, and issue a decision.  There are several situations in which the Board will decide to remand a claim, including:

  • If the Board believes it needs additional information or evidence in order to come to a final determination.
  • If the Board does not believe that the Regional Office evaluated the veteran’s claim appropriately.
  • If additional evidence was submitted that the Regional Office did not review.

Importantly, in the Legacy appeals system, VA is obligated to remand for duty to assist errors that occurred at any time while the veteran’s appeal was pending.  If a veteran’s case is remanded, their file will go back to the Regional Office.  In each remand, the Board will lay out specific remand instructions to which the Regional Office must adhere.  For example, the Board can instruct the Regional Office to obtain a Compensation & Pension examination, medical records, service records, etc.  Once the Regional Office completes the Board’s remand instructions, it will issue a decision on the veteran’s claim.  It can either issue a Rating Decision if it determines the veteran is entitled to the benefits sought on appeal, or a Supplemental Statement of the Case (SSOC), if it is unable to grant benefits.  The issuance of an SSOC will automatically send the veteran’s claim back to the Board so the Board can make a final decision.

How Do Board Remands Change Under Appeals Reform?

Under Appeals Reform, VA is no longer obligated to remand for duty to assist errors.  However, if the duty to assist error is pre-decisional, meaning it occurred prior to the Agency of Original Jurisdiction (AOJ) adjudication on appeal, the Board can remand the appeal back to the AOJ with instructions to correct the error.  For example, the Board may request the AOJ to obtain an advisory medical opinion if it should have done so prior to the initial decision.

Importantly, under Appeals Reform, remanded appeals are not automatically returned to the Board following development and correction.  Instead, the AOJ will readjudicate the appeal by re-reviewing the record, conducting the development necessary to correct the pre-decisional duty to assist error, and issue a new Rating Decision.  A veteran’s appeal will only return to the Board if the claimant files another Notice of Disagreement within one year of the AOJ’s readjudication.

If there is no pre-decisional duty to assist error, the Board is instructed to grant or deny the appeal for benefits based on the evidence considered by the AOJ, and any evidence submitted during or within 90 days after the NOD or Board hearing.

 

Category: Veterans Law

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