Category Archives: VA Claim Appeals

VA Appeals Process

So, after all the hard work involved with replying to the VA’s requests for more records and for enduring one or more Compensation and Pension, or C&P, exams, you get a notification letter from the VA where they deny your claim or don’t rate your disability high enough. Welcome to the VA appeals process. It can be very frustrating and you may feel like giving up, but don’t take “No” for an answer and know your rights about appealing the decision.

The first thing that you will want to do in the VA appeals process is to file a Notice of Disagreement, or NOD, with the decision. This is the first step in appealing the denial or improper rating. Don’t delay though, because you only have one year from the date of the VA’s decision letter in order to file an NOD. Otherwise, you lose your right to appeal and the decision becomes final.

Two very common and disturbing mistakes is for a veteran to file a reconsideration or later file a reopen of the claim, instead of appealing the decision. If someone, whether it be a VA representative or Veteran Service Officer, advises you to file a reopen or reconsideration instead of an appeal, they may not be looking out for your best interests. Don’t let them scare or intimidate you when they say that the VA appeals process will take much longer and be much harder to get approved. Reopens and reconsiderations require you to submit new and material evidence, and you stand the chance of losing your back pay as well.

VA Appeals Process
VA Appeals Process. Courtesy: VA

DRO Hearing

What happens if the VA made a mistake with the evidence that you already submitted with the original claim? It doesn’t matter if you don’t appeal it. The better way to go is to file an NOD and request a DRO Hearing. This is where a Decision Review Officer, or DRO, takes a fresh look at the claim and disregards the previous decision to see if there were any errors made, and new evidence can also be submitted. Often, a DRO will find an error and approve a claim based on existing evidence that was already submitted – this would not be possible with a reopen or reconsideration.

If the DRO continues the previous decision on the claim, then a Statement of the Case, or SOC, is issued. The SOC will explain in detail what the issues are and why the claim was denied or rated accordingly. You will have 60 days from the date of the SOC to file a VA Form 9 to formalize the appeal so that it can be certified to the Board of Veterans’ Appeals, or BVA, in Washington DC. When filing your Form 9, the quickest way to get a hearing date is to request a live videoconference before the BVA.

VA Appeals Process Wait Times

The VA appeals process and initial claims waiting times are published weekly in the Monday Morning Workload Report.

  • NODs at the Regional Office: 404 days
  • Form 9s at the BVA: 567 days

 

NOD vs Reconsideration / Reopen

What route should you take with your denied VA disability claim: NOD vs reconsideration / reopen? Make sure that you know the facts before you make a decision.

First, I want to say upfront that I advise filing an NOD 99% of the time. Let’s start out by talking about the advantages of an appeal instead of a reconsideration or reopen. When you file an NOD, you also want to elect to have a “de novo” review performed by a Decision Review Officer (DRO). A DRO is an experienced supervisor who will take a fresh look at the claim and set aside the previous decision that was made. The DRO has the ability to approve the claim based on the evidence that was already submitted if he/she found that a mistake was made in the previous decision, and new evidence can also be submitted with the NOD for the DRO to consider. If the decision is favorable and the claim is approved, the effective date will be the original date of claim and the veteran will be paid retroactively to that date.

Now, let’s talk about the advantages of requesting a reconsideration / reopen of a previously denied claim instead of filing an NOD. There is only one advantage, and it is at best just a slightly better possible outcome: timing. We all know how long it takes the VA to do anything and chances are that you had to wait a very long time to even get the first bad decision on your claim. When you talk to an ill-informed VA representative or Veteran Service Officer about filing an NOD, they will try their hardest to have you file a reconsideration / reopen the claim at a later date. They will say that it will take several years for your appeal to go through and that a reconsideration / reopen is much quicker, but that may not necessarily be accurate. About 80-85% of the NODs that I submit get approved by the DRO at the Regional Office level within about a year, which is the same timeframe as a reconsideration.

This leads us to the disadvantages of an NOD. If the DRO continues the denial after conducting a de novo review, then the claim goes to the Board of Veterans Appeals (BVA) in Washington DC, and it may in fact take several years for the decision. One other factor to consider when filing an NOD is that you only have one year from the date of the decision to file a Notice of Disagreement. So as long as you are within a year from a denial, you should go ahead with the NOD. Otherwise, your only other option would be to reopen the claim if the denial is more than a year old.

When we look at the disadvantages of filing a reconsideration / reopen, the facts tell the real story. Probably the most important issue is evidence. If you have a claim that was denied, then you must submit new and material evidence in order for the claim to be reconsidered or reopened. What if the you submitted all of the necessary evidence with the original claim and it was still denied? If you file an NOD, the DRO may find that a mistake was made and the evidence that was submitted was overlooked or improperly evaluated, and the claim could be approved. With a reconsideration or reopen, you don’t have this option and unless you have something new and material to offer, you will not be successful and the claim will remain denied.

Most importantly, you stand to lose out on a significant amount of back pay when you file a reconsideration or reopen. If the claim is approved, the effective date will be the date that you submitted the new and material evidence. With an NOD, the effective date is the original date of claim. In some cases, this may be several years worth of retroactive pay.

An ill-informed VA representative or Veteran Service Officer (VSO) may try to discourage you from filing NOD, and they will try their hardest to have you file a reconsideration or reopen of the claim instead. They do not always have your best interests in mind.

I am working with a Veteran who was talked into withdrawing his NOD by a VSO and filing a reconsideration. As a result, it cost him over $46,000 in back pay!

Losing money with a reconsideration

Remember, don’t let anyone persuade you to do something that isn’t in your own best interests.