|Lead Moderator, Veterans Issues |
Appeals can only be taken on final decisions (proposed reductions are not final decisions) by the agency of original jurisdiction, usually the Regional Office (RO). Every final action should include a letter advising the claimant of the decision, (the reasons and basis) and include a notice of appeal rights. Just about anything in the RO’s decision can be appealed, . The appeal process must begin within one year of the date of notice or the decision becomes final and cannot be appealed. Medical decisions can not be appealed to the RO.
Appeal vs. New Evidence: When the decision is made, your will get a copy of the narrative of the decision explaining why the decision was reached. Read it over, and if it appears that the decision can be overturned by supplying missing evidence (i.e. a VA form 21-8940, or a diagnosis of a claimed condition ect.), obtaining the evidence needed is the better (and often quicker) path to take.
What is the Issue, and Can Your Prevail on Appeal?
• New and Material Evidence-If the reopened claim is denied for lack of new and material evidence, that will be the only issue that can be appealed. New meaning the evidence has not been previously considered, and is not redundant of the evidence of record. Material in that it bears directly and probatively to the issue at hand. Once a claim is considered reopened the VA then has to determine whether or not the claim can be granted based on the evidence now of record. Sometimes claims are denied for reasons that cannot possibly be overcome.
• Relationship to Service or Service Connected Disability-Whether or not the claimed condition has it's origins in service or a medical relationship to a service connected disability. This requires a probative medical opinion substantiating a link between the claimed condition, the opinion of a lay person will not generally suffice.
• Diagnosis-Validity of disability under Title 38 C.F.R. and/or the ICD-9 or DSM-IV-TR. There must be a definitive diagnosis, unless otherwise provided under Title 38.
The Board of Veterans Appeal has often applied the regulations, statutes, and Court precedents very liberally in their final decisions, however, without any of the three as outlined above with almost always result in a denial.
The most expedient course of action would be to identify whether or any of the three issues are deficient. Reopen the claim within the 1 year appellate period to have the claim readjudicated (38 C.F.R. 3.156(b), and 3.400(q)). Should the reopened claim result in a denial, and you feel strongly that the RO was wrong in the denial, file the NOD and then continue obtaining additional evidence required to prevail. This is the first step in the appeals process. It is best to work with a VSO on your appeal.
DeNovo Review or Decision Review Officer (DRO) process 38 C.F.R. 3.2600
***In many Regional Offices, you must elect a DRO or default to the Traditional Appeals process***
A Decision Review Officer (DRO) is part of the appeals process prior to advancing the appeal to the BVA Board of Veterans Appeals. A DRO is a "senior" rater who didn’t participate in the decision being reviewed and has the authority to over turn the prior deicsion, initiate additiona development or examinations, and if requested will conduct a hearing on the appealed issues. The DRO step is optional; you may waive this step and elect a traditional appeal. In my opinion the DRO step is another opportunity to win your claim without the two year or longer wait to get the appeals hearing. Appeals are hard to win. Every tool provided should be considered. This is an area where you need an experienced professional supporting you.
A DRO hearing may be formal or informal, may be conducted in person or via video-teleconference, or at your choice may be resolved without your presence.
A DRO can consider all evidence of record and applicable law and will give no deference to the decision being reviewed. A DRO can only increase, not decrease, your rating (so you are getting two bites at the apple) unless clear and unmistakable error improperly gave you a higher rating.
BVA – Board of Veterans Appeals – A department of the VA
If you are still not successful with the DRO, you can appeal to the Board of Veterans Appeals by completing a VA form 9 subsequent to obtaining a Statement of the Case (SOC). The VA Regional Office will mail you a SOC describing what facts, laws and regulations were used in deciding your claim.
You must file your appeal with the Regional Office and not directly with the Board. You must appeal on a timely basis, typically 60 days from the mailing of the SOC or within the 1 year appellate period, which ever is later. Again that information will be in the SOC decision you receive from the RO after the DRO makes a decision.
You can request a personal hearing before the BVA prior to the Board deciding your appeal. You have 3 options.
1. Go to Washington , DC and appear before the Veterans Law Judge (VLJ) in person.
2. Request an in-person hearing at the VA Regional Office when the VLJ is scheduled to hold hearings at that office – expect a wait for your case to be heard.
3. A video conference hearing. This hearing is on the informal side, with the VLJ listening to you or your representative present the case in favor of your claim, and asking question about your case.
There is a statistically slightly higher chance to prevail on your appeal if you appear in person, however there is risk that you may do or say something to negatively influence your case. Regardless of the choice of the method of hearing you chose, you and your representative have the opportunity to make a written presentation of your case to the BVA.
You need professional help to make a good case if you expect to win. Many Veterans Service Officers do this on a regular basis, and all the major service organizations have representative at the Regional Offices who are experts at appeals
The BVA can take one of these actions:
1. Grant the claim and award the benefit.
2. Uphold the RO decision and deny the claim.
3. Remand the case to the RO to correct their errors or develop the issues.
A remand requires the RO to take actions to properly adjudicate your claim. Remand orders are usually directed to the VA Appeals Management Center (AMC) for action, but can be referred to the RO.
The mission of the AMC is to process remands timely and consistently. The AMC has complete authority to develop remands, reach decisions based on additional evidence gathered, and authorize the payment of benefits. If the AMC is unable to grant an appeal in full, the appeal is recertified to BVA for continuation of the appellate process.
U.S. Court of Veterans Appeals (CAVC) – an Independent court of the Federal Judicial Branch
If you disagree with the decision of the BVA, you can appeal to the U.S. Court of Appeals for Veterans Claims. You must file a Notice of Appeal with the Court within 120 days from the date of the board’s decision. There is a $50 filing fee which in some cases may be waived. You will be required to obtain private counsel, or an attorney. Some Service Organizations will represent before the Court at their choosing. No additional evidence may be submitted at this point, and hearing presentations are not automatic as a right of due process. The Court will only discuss whether or not the interpreatin of the law, it application or any other instance of the same was valid at the time of the BVA's decision.
The next level is the U.S. Court of Appeals for the Federal Circuit, then the Supreme Court. Very few of the hundreds of thousands of claims ever reach these appeal courts and you can expect to spend one or two decades on these appeals.
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