01 April 2011

Start to Finish - a VA Appeal Explained

WORKING WITH THE VETERANS SERVICE OFFICER: (also known as National Service Officer or VSO). I'll be stressing in this blog the importance of working with a veteran's service organization from the very start of your application for VA benefits. The process is a lengthy one, taking perhaps a year from start to finish on a good decision, and can take more years if you have to work your claim up the appeals process. Let the professionals do it right, right from the start!

WHY SEEK VA BENEFITS: For many of us, even if we have TriCare as military retirees, VA benefits will be quite important. For instance, at a 20% disability rating a veteran may qualify for voc-rehab...and some have completed graduate or law degrees at the VA's expense and also been paid more each month for doing so. At a 50% disability rating, veterans receive any and all care from the VA, to include hearing aids and glasses. The next "milestone" is 70%, at which point a veteran may qualify for nursing home or long term health care at the VA's expense in either a VA or local civilian nursing home. Further, there can be a significant impact on survivor benefits as well as burial allowances. 

MAY 4 UPDATE ON ACTIVITIES RE: C-123k Agent Orange Exposure: This morning, thanks to referrals from Linda Schwartz, Commissioner for Veterans Affairs in Connecticut, I had responses from the president of the Vietnam Veterans of America as well as from the  VVA's National Chair for Agent Orange issues. They are very concerned about us, and will try to offer useful advice...more as we get it from them.

from VietNow National Magazine
Your VA Appeal
If your VA claim is denied, don't give up. Although the appeals process can be a long road, filled with piles of paperwork and delays, it's nowhere near impossible – and our VA claims expert gives these clues for how to do it.
By Raymond Gustavson
If you feel the VA denied your claim unfairly, you should file what is called a Notice of Disagreement (NOD). This is the first stage of the appeals process. From here you can go it alone, or ask a service representative (American Legion, DAV, etc.) to assist you with the paperwork.
First of all, how do you start the appeal’s process? Simply write a letter to the VA stating that you disagree with the decision you received. You don’t need to go into a lot of detail. Just say that you disagree. 

The VA is then obligated to furnish you a Statement of the Case (SOC). This document summarizes your claim, and provides you with an Appeal to Board of Veterans’ Appeals (VA Form 9). If you still believe the VA decision is wrong, the VA Form 9 must be returned in order to perfect your appeal. And it must be received
by the VA either within 60 days of the date the Statement of the Case was sent to you, or within one year of the original letter denying your claim, whichever is later. This is very important. Do not ignore it.

Construction of the Statement of the Case is complicated because it contains precise, almost stilted, terminology. This can be intimidating for anyone to read, much less understand. Basically, the Notice of Disagreement is divided into six sections: Issue; Evidence; Adjudicative Actions; Pertinent Laws, Regulations, Rating Schedule Provisions; Decision; and Reasons and Bases:
Issue: This section states the issue(s) involved in your denial. For example, maybe you made a claim for service connection for diabetes or a right-knee condition.
Evidence: This lists all the evidence the VA used in processing (or adjudicating) your claim. For example, Service Medical Records, hospital reports, family doctor’s reports, etc.
Adjudicative Actions: This is a chronological listing of events related to your claim. For example: date claim received, date claim was considered (i.e., date of your Rating), date of denial letter, and date Notice of Disagreement was received by the VA, etc.
Pertinent Laws, Regulations, Rating Schedule Provisions: This is one of the longest sections you will encounter in your Statement of the Case. Do not stress yourself out trying to understand this section. All Statements of the Case must contain a set of eight basic laws. There are also additional laws specific to certain types of claims, such as increased benefits, Aid and Attendance, non-service connected pension, etc. But all SOCs will, at a minimum, contain these eight basic laws.
Decision: This tells you what the VA decided and why. Example: Service connection for diabetes or a right knee condition was denied.
Reasons and Bases: This section tells why the VA denied your claim. You will notice that much of the language is similar to that used in your original Rating Decision. Most rating specialists simply use the cut-and-paste command to transfer text from the Rating Decision to the SOC. Of course, if you have submitted new evidence this will be considered.

Once the Statement of the Case is mailed to you, read it carefully, or take it to your service representative for interpretive help. Again, pay careful attention to the time requirements for submitting the Form 9. As stated above, this document must be received by the VA either within 60 days of the date the Statement of the Case was sent to you, or within one year of the original denial letter, whichever is later.
As an aside I have seen several instances where the Form 9 was not returned to the VA in time. The VA promptly closed out the appeal, despite the fact that they took a year or more to send out the SOC. The last thing you want is to have your appeal closed out. This means you will have to start over with a reopened claim. Any chance of receiving retroactive benefits is lost.

Bear in mind, too, that it is your responsibility to make sure your appeal is filed on time at all stages. An easy way to do this is to make a simple chart showing the following:
• Date of VARO decision.
• Date you mailed the Notice of Disagreement back to the VA.
• Date Statement of the Case was received.
• Date you submitted your VA Form 9.
• Additional items such as the date you submitted new medical evidence, date Supplemental Statement of the Case was received, etc.

Once you have returned the VA Form 9, your case is logged into the Board of Veterans Appeals (BVA) docket. Of course, at any time you may continue to submit new medical evidence to strengthen your claim. If you do so, and the VA determines that your claim remains denied, they will issue you a Supplemental Statement of the Case (SSOC). This is like the Statement of the Case, but it is used to cover medical evidence you submitted after receiving your SOC.

Keep in mind that it is best not to submit medical evidence which has already been considered by the VA. Submitting duplicate evidence means the VA must furnish you with yet another SSOC. This lengthens your wait for the BVA to hear your case, and detracts from the VA’s ability to reduce the appeals backlog for all veterans.

If you want a hearing with the VA you may ask for one of the following:
• A hearing in person in Washington, D.C.
• A video conference hearing with a board member in Washington, D.C.
• A hearing with the VA travel board.
• A hearing with a Decision Review Officer (DRO).
Due to the backlog of pending appeals, keep in mind that it may be a year or more before the VA Travel Board can get to your case. The quickest way to get a hearing is with a video conference or a Regional Office DRO. The DRO is an employee of the regional office where your claims file is kept, and I would suggest that you ask for a hearing with this person. The process is speedier.

Hearings are conducted in informal fashion so that you may feel at ease and can present your case. You may have a service representative or private attorney accompany you to the hearing. After the hearing is conducted, a copy of your transcript will be sent to the Board of Veterans Appeals (BVA) along with your VA claims file.

When the VA Regional Office (VARO) transfers your claims file to the Board of Veterans Appeals (BVA) in Washington, D.C., you will receive a letter stating that you have 90 days from the date of their letter to submit additional evidence, request a hearing, or select (or change) your service representative. If you submit evidence after the 90-day period, the BVA will issue a decision either accepting or rejecting the evidence.
Occasionally, the BVA will remand a decision back to the Regional Office for further development or to ensure that the appeal complies with new procedures. Also, there may be a new take on your claim, and the BVA wants to explore this issue before making a final decision on your claim. Of course, this procedure extends the appeals process, and you will most certainly be asked to furnish some type of new evidence or to appear for yet another VA examination. Afterward, you will receive an SSOC. You need do nothing at this point because your claim will be automatically returned to the BVA.

If you receive a decision from the BVA on your disability claim, and you still disagree, you can file an appeal with the U.S. Court of Veterans Appeals (COVA). COVA’s task is to review decisions made by the BVA.
To appeal to the COVA, I would suggest that you carefully read and then re-read the instructions that came with your decision. Basically, you must file the appeal within 120 days after the date the BVA mailed a copy of its final decision to you and/or your representative. The 120 days period starts from the date stamped on the BVA decision. There is a $50 fee for filing an appeal. You should send your Notice of Appeal form to the following address:

Clerk of the Court
U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, D.C. 20004-2950

You may also fax the appeal, but do not e-mail it. COVA does not accept e-mails.

Incidentally, COVA also has a list of approved practitioners (attorneys and non-attorneys) who can help you with your claim. The list is on the COVA web site (www.vetapp.uscourts.gov). Once your appeal is docketed you may check its status on the COVA web site, however, you must know your docket number to do so.
A rarely used appeals procedure is to ask for reconsideration of your BVA decision if you believe a clear and unmistakable error (CUE) was made. This is called a “Motion to Reconsider,” and it must be filed within 120 days from the denial date of the BVA decision. The BVA will then issue a decision. If your motion is denied, you then have an additional 120 days, from the date of postmark of the BVA decision, to appeal to COVA.
In summary, do not become discouraged if your claim for VA benefits is denied. File a Notice of Disagreement, and ask your service representative to help you keep track of your appeal. The VA Appeals Process is difficult to understand, but it is set up to be fair to the veteran. Just follow the tips listed above, and you will do fine.

Raymond Gustavson served with the U.S. Army in Vietnam, and is a retired VA Rating Specialist.

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