The Appeals Process by Gina chandler Life Cycle of a VA Appeal The Appeals Process by Gina chandler

What constitutes an Appeal????? A TIMELY, written Notice of Disagreement VA issued a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) A timely filed Substantive Appeal or VA Form 9 38 CFR 20.200

What is a Notice of Disagreement? A Notice of Disagreement (NOD) is a written statement or communication¹ from the appellant or their accredited representative² to the VA Regional Office and must express disagreement and desire for appellate review³. It must be filed within one year of when the RO’s decision letter was mailed4. It can be filed on a VA form 21-4138, 21-0958 or just a plain piece of paper. Footnotes: 1. 38 CFR 20.200 2. 38 CFR 20.301(a) 3. 38 CFR 20.201 4. 38 CFR 20.302(a)

Example of a Notice of disagreement or nod

Another example of a nod on a 21-4138

What happens to the nod? The file is reviewed along with any additional arguments or evidence included with the NOD. The Decision Review Officer or DRO will then either grant the benefit sought or if any issue(s) continues to be denied, prepare a Statement of the Case.

What is a De novo review? It is a review by a Decision Review Officer or DRO starting at the original rating decision for the issue(s) on appeal. It should be a thorough review of all the evidence and decisions up to the last decision making sure the decisions were correct. Any additional evidence sent with the NOD will also be taken into consideration when the DRO makes a decision after the De Novo review. 38 CFR 3.2600(a)

What is a traditional review? A review by someone in the Appeals Team at the Regional Office, but it is not a De Novo review. The reviewer, sometimes a Rating Specialist, reviews any additional evidence received with the NOD and either grants the benefit sought or if any issue(s) continues to be denied, prepares a Statement of the Case. 38 CFR 3.2600(f)

No selection on the nod If the Notice of Disagreement does not request a De Novo or Traditional review, the VA will send a letter to the appellant, explain both reviews, and give them 60 days to make a selection. If the appellant fails to make a selection within 60 days from the date of the letter, VA will proceed with the Traditional review. 38 CFR 3.2600(b)

De Novo or Traditional Review? Question: Which process is better? Answer: A De Novo review is more thorough and a DRO could use Difference of Opinion to change the rating.

What is Difference of opinion? The DRO can change the decision based on the record if he/she believes that a better rating practice would be to grant. The DRO cannot reverse a decision with which he/she just disagrees. 38 CFR 3.2600(a) Difference of opinion does not require new medical evidence to change the previous decision. The DRO is the only person in the Regional Office who can change a rating based on difference of opinion.

What is a Statement of the Case (soc)? It’s a detailed description of the facts, laws, regulations, and reasons used by the RO in reaching their decision. It’s intended to help the appellant understand the laws and regulations for the RO decision. It’s also intended to help the appellant with their appeal. 38CFR 19.29

What is a Supplemental statement of the case (ssoc)? A supplemental statement of the case or SSOC is issued when the appellant submits NEW evidence after the Statement of the Case (SOC) and the DRO continues to deny the issue(s) on appeal.

Va form 9 Included with the SOC is VA Form 9, Appeal to Board of Veterans’ Appeals. It is also called a Substantive Appeal. 38 CFR 19.30 To follow through with the appeal, the claimant MUST complete a substantive appeal within the appellate period. 38 CFR 20.202 This is usually a Form 9.

Example of form 9

Time limits for filing va form 9 #1 – 60 days from the date the SOC is mailed or the remainder of the one year period whichever is greater. 38 CFR 20.302(b) #2 – 60 days from the date the SSOC is mailed or the remainder of the one year period (#1) whichever is greater. 38 CFR 20.302 (b)(2) WHEN IN DOUBT REMEMBER 60 DAYS FROM THE DATE OF NOTIFICATION OF SOC!!!!!

Questions to ask the CLAIMANT Q: What is the date of the notification letter? A: This will determine if a NOD is still eligible. Q: What other information might be needed? A: Have you filed a disagreement with the VA? Have they sent you anything (such as a SOC), etc.? Q: Why is this important? A: You need to find out where in the appeal process he/she is or needs to be and if you have time to get the NOD or Form 9 submitted.

So What happens next? Once the VA Form 9 has been filed with the VA, the veteran’s accredited representative at the Regional Office will be given the opportunity to make any final arguments prior to the case being sent to the Board. The case is then certified to the BVA and it is assigned a docket date and number. At this time the case is officially now in the hands of BVA. A hearing whether it’s a video, travel board or in person hearing at Washington DC is scheduled. The veteran is notified in writing 30 days prior to the hearing.

So what happens next? continued At the hearing those that attend are the representative of record, the person requesting the hearing and possibly witnesses that will testify to the issue in question. Exception: On rare occasion, such as incarceration or a serious medical condition, the claimant is prevented from attending the VSO may appear alone.

What can be done at a hearing? Present documentary evidence, to include oral testimony. Bring witnesses to provide testimony. Present arguments and contentions with respect to facts and applicable law.

Submitting new evidence to the board Anytime evidence is submitted directly to the Board, the Board MUST refer that evidence back to the RO for their initial review. 38CFR 20.1304(c) Which delays the appeal UNLESS: You can avoid this delay if you put a waiver on any additional evidence submitted directly to the Board. This can be done on a 21-4138. Simply state “ I hereby waive Regional Office consideration of the attached additional evidence/records I am submitting to the Board of Veterans Appeals.”

Advancement on the docket The Board may grant a motion to advance an appeal on the docket for the following reasons: The claimant is seriously ill (terminal). The claimant is under sever financial hardship (foreclosure or eviction notice). The claimant is of advanced age (75 years or older).

Bva decisions Deny the issue(s). Remand the issue(s). When a BVA Judge decides the case, he/she can do several things: Grant the issue(s). Deny the issue(s). Remand the issue(s). The decision may include all three. The Board will send the appellant and their representative a copy of the decision.

BVA Decisions continued If the issue is granted or denied, the Board’s decision is final and will include appellate rights to the Court of Appeals for Veterans Claims (CAVC) on the denied issues. The appellant has 120 days from the denial to file with Court of Appeals for Veterans Claims. Any issue that is remanded is not a final decision.

remands If the Board finds that it does not have enough information to make a decision on a specific issue, the Remand Decision will instruct the Appeals Management Center (AMC) or Regional Office what it needs to make a decision. Or, if there is something that has happened, such as a change in law, request for a hearing, submission of new evidence, etc. that the appeal requires re-adjudication, the appeal is remanded.

remands Once the information has been received (or an unsuccessful attempt has been made), the Regional Office or AMC will make another decision and grant the benefit sought or continue the denial and issue a SSOC.

grants Sometimes the BVA decision will have the percentage and effective date; however, most of the time it doesn’t. The grant decision is sent with the file back to the Regional Office. They will do the rating decision, assign percentages and effective dates. You can appeal that decision on percentage and/or effective dates if the claimant is not satisfied.

Clear and unmistakable error “CUE” Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of a clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 CFR 3.105(a)

Filing a “cue” This means the veteran must present a detailed and logical argument showing of the following: The alleged CUE The factual or legal reasons for the alleged CUE Why the decision would have been “manifestly different but for the alleged error” If you simply state that the previous decision contained a CUE without providing exactly how the previous decision contained a CUE, your CUE claim will be dismissed rather than denied.

What’s not a CUE? Changed diagnosis. A new medical diagnosis that ‘Corrects” an earlier diagnosis. Evaluation of evidence or difference of opinion. A disagreement as to how the facts were weighed or evaluated. Change in interpretation. CUE does not include the otherwise correct application of a statute or regulation where, there has been a change in the interpretation of the statute or regulation.

CUE continued There is no time limit in which to file a “CUE” You cannot submit additional evidence, CUE is only based on the record and regulations at the time of decision. The CUE is handled like a claim by the rating board. A decision is made either to deny or reverse the original decision.

Any questions????