Understanding Your VA Disability Claim Appeal Options

Understanding Your VA Disability Claim Appeal Options

A VA Disability Appeal can be an arduous process.  In addition to the fact that the burden is typically on you alone to demonstrate that you have a service-connected injury or disability, you also have to understand the purpose and different steps in the appeal timeline. 

Whether it’s a Notice of Disagreement (NOD), Decision Review Officer (DRO) Hearing, or Statement of the Case (SOC), or BVA Hearing, you could benefit from insight into what to expect, and what to do. 

What is a Notice of Disagreement?

A Notice of Disagreement (usually called a NOD – as in a “head nod”) is a formal disagreement with a Veterans rating decision.  Most often, this term is used in context of a disability determination, though a NOD can be filed for other benefits decisions issued by the Department of Veterans Affairs.  We’re focused specifically on disability compensation and pension for this series, however.

Prior to considering a NOD, you should have already filed an initial claim for a disability or for pension (due to disability). 

Disability compensation is for an injury or illness that has an effect on you today, and that was caused or made worse by your military service.  A disability pension is similar to social security, in that you have a disabling condition (that is not covered under disability compensation), and you receive a pension that provides a base-minimum level of income.  In fact, for VA service connected pension, eligibility for SSI is a great measuring stick to determine if you would rate the benefit.

Timing Your VA Notice of Disagreement

After a determination has been made on your compensation or pension initial claim, you have up to one year to file a notice of disagreement.  The notice of disagreement initiates your VA disability appeal and you will receive a letter asking you to state whether or not you wish to pursue a Decision Review Officer (DRO) Hearing.  We cover this further in this article. 

How to File a VA Notice of Disagreement

Until recently a notice of disagreement need not be more than a simple statement saying that you disagree with the determination.  It could even be written in crayon on the back of a napkin.  In fact, you might still be able to get away with this, but generally speaking, the process has become a bit more formalized.  One of the reasons for this is because of the massive backlog of appeals the Department of Veterans Affairs has been working to tackle.  The thought being if they can standardize the major steps, maybe they can speed up the rest of the process.  The first major step by bing a Notice of Disagreement.

You can file a Notice of Disagreement by filling out a VA FORM 21-0958 and “mail your NOD to the address included on the VA decision notice letter or take your NOD to your local RO.”

Make sure to list all the items you disagree with for your appeal.  Meaning list all the ratings decisions you are choosing to appeal.  But be very careful about saying what you believe your rating decision should be.  You may want to consult with an attorney or advocate to go over that section.  Re: you may not really know what your rating should be.  You’re not an expert on that part of your claim, you simply know something is wrong and they got their rating decision incorrect.  When in doubt, don’t box yourself in with specifics.  The VA has an obligation to help you develop your claim and appeal and that means, that if you provide that you don’t agree and list some basic reasons why, it’s incumbent upon them to determine the level of impairment (based on their observations, and your testimony).

 After a Notice of Disagreement has been filed, you will have the option of using the Decision Review Officer process (a reconsideration). 

What is a Decision Review Officer?

An adjudicator is a person that reviews your disability claim to determine whether you rate the compensation or pension that you are pursuing.  They make the final determination on your claim and issue your ratings decision.  A Decision Review Officer is a senior adjudicator.  This may mean they are even contracted out of retirement to review claims requesting DRO review.

What am I Committing to with the Decision Review Officer Process?

The important thing to remember about a DRO review is that it’s optional.  You can fore-go a DRO review if you choose and you’ll just be moved to the next step, where you’ll get a request for more evidence, and at some point you’ll get a statement of the case (SOC) issued to you.  We’ll cover that in the next part of this series.  However, should you elect a DRO review you can expect a second pass on the information you initially provided in your claim.

It’s not uncommon for a DRO to review the ratings you were initially offered/denied and see that there were mistakes or misunderstandings.  The initial claims raters (adjudicators) don’t have a lot of time to spend on each determination, and in some cases that haste leads to poor or occasionally completely incorrect ratings decisions.  A DRO usually has more time to look at the components of your claim, and even to reach out to you for specific details.  They also have the ability at any time to make a determination in your favor.

What’s Going to Happen in the DRO Review? 

Once you elect to receive a DRO review a DRO will be assigned to review your initial claim and the ratings decision(s) you are appealing.  The DRO has the ability to take a much deeper look at your claim and they may elect to communicate with you informally to request more information on a specific area.  They may also set up a DRO hearing, which is similar to a Board of Veterans Appeals (BVA) hearing, except for the fact that you can have a bit more of a discussion.  When you’re at a BVA hearing, the judge receiving your case won’t say, “I need to see item X, and I can make this determination,”  whereas a DRO can very much discuss things on those terms.

For this reason, anytime you have an opportunity to speak with a DRO, consider asking in terms of, “what evidence can I provide to you, that you don’t have, would help you to make a determination in favor of the appeal?”

What if the DRO Concludes the Same Thing as the Initial Determination? 

It’s very possible that a DRO review will find the same as the initial ratings decision, or that in DRO review your appeal(s) are partially addressed, but not completely addressed.  Depending on the outcome, you have a couple options.

1) If the DRO finds the same as the initial ratings decision, you’ll be notified and your next step will likely involve receiving a Statement of the Case so that you can prepare for a Board of Veterans Appeals Hearing.   Your appeal is not dead by a long shot!  Many appeals are granted at the BVA level that are not granted at the DRO level simply because a judge has more latitude in making determinations that would be consistent with the law, whereas a DRO has to stay within the policies that already exist.

2) If the DRO finds that some aspect of your appeal merits a different rating, they may grant that.  At which point you’ll be provided a new ratings decision.  You can then file a NOD with that ratings decision (go back to step 1).

If you’re confused about what to do from here, make sure to talk to an attorney or other Veterans advocate.

Dealing with Setbacks, Reviewing Your VA Statement of the Case

After you’ve given notice that you disagree with your ratings decision you’ll be given options to provide more evidence and to pursue a Decision Review Officer reconsideration.  If after all of those processes the VA still believes their ratings decision to be correct, you’ll be issued a Statement of the Case (SOC, spoken as: ess-oh-cee).

The SOC reads like a very in-depth ratings decision, though it’s not a ratings decision.  In the SOC you’ll get a breakdown of the timeline of your claims, the ratings decisions, and the reasons for the ratings decisions.  The reasons for your ratings determinations are usually accompanied by the applicable law, or ratings table.

This is a very important document, and if you elect to take your claim appeal to the next step (BVA Judge) then you’ll be using this to base your arguments off of.

What Do I Do After a Statement of the Case Has Been Issued?

Once you’ve been issued a Statement of the Case, you have 60 days to file a VA form 9 (Appeal to Board of Veterans’ Appeals).  This will let the Department of Veterans Affairs know that you wish to schedule a hearing in front of a Board of Veterans Appeals judge. 

At this point, you should be doing a lot of personal research on the process of presenting your appeal in a BVA hearing or reaching out to a good VA attorney or advocate.

If you miss your 60-day timeline, your ratings decision may become permanent, and you will have to start your whole claim over, by filing a new initial claim.

What is a VA Form 9

The VA Form 9 is your tool to request a BVA hearing after the Statement of the Case has been issued.  You will use this form to let the BVA know how you’d like your case to be heard.  You have the option of seeing a judge when they travel to your VA regional office, speaking to a judge via videoconference, appearing in front of a BVA judge in person in WA DC, or choosing to waive your right to present your case and allowing for the BVA to make a determination based on the evidence already presented and if you choose, a testimonial and additional evidence that you would like them to consider.

You should submit your VA form 9 to: 

Department of Veterans Affairs

Claims Intake Center

PO BOX 4444

Janesville, WI 53547-4444

OR

Fax: 844-531-7818

At this point, get certified mail.  You do not want to get into a fight over whether or not you sent the VA Form 9 and when it was received.    The fax # typically provides a receipt of what was sent and when.

Understanding the Purpose of a Board of Veterans Appeals Hearing 

After having filed your NOD, going through an optional DRO review, receiving your SOC, then responding with a VA form 9, you are now at the Board of Veterans Appeals (BVA) hearing.  A BVA hearing is a formal hearing with a Board of Veterans Appeals judge.  You will be sworn in, and have an opportunity to present your appeal.

The judge may choose to ask questions to understand your claim and appeal better, but they are not obligated to do so.  Because of this, it’s best to be prepared, and be organized.  And if you have the ability to get your thoughts in a succinct but thorough document, do so.  You can submit it after your hearing, and you can waive your right to have a regional office review of the document so that the judge can use it in their determination.  <- this is very much a strategy decision you have to make.  If you have an attorney or advocate, this is something you’d want to talk to them about too.

We’ll cover what to expect after a BVA Hearing below.  But first, we should cover how you can expect to do a BVA hearing, as there are several options.

What Are My Options for a BVA Hearing?

If in your VA Form 9 you identified that you wished to have a hearing in person, at the VA regional office nearest you, you’ll check in on the date of your hearing and be escorted up to the room of your hearing.  The room is usually a small conference room, and there will be recording equipment for the judge and their staff to review in making their decision at a later date.  You will have the option of requesting a transcript of the hearing.

If you chose to do a video conference in your VA Form 9, the process is similar to testifying before a judge in person, and in many cases you’ll use the same conference room.  The difference is that once sworn-in, you’ll be testifying before the BVA judge in front of a large television with a camera attached.  The judge will see you and you’ll see the judge, though you’ll both be thousands of miles apart.  Again, the hearing is recorded, and you can request to have a transcript prepared.

What Happens After a BVA Board of Appeals Hearing? 

The BVA judge will not make a determination at the end of your BVA hearing.  They will take their notes and the transcript of the hearing and make a determination over the next couple weeks.  You can typically expect to receive a written determination within a 2-6 weeks.  The determination will have a thorough description of the initial claim, the appeal, and the determination of the judge with the applicable laws and statutes cited.

At this point, if your appeal has been granted partially or fully, congratulations!  If not, you may need to consider taking it before the Court of Appeals for Veterans Claims (CAVC).

It Can Be a Long and Complex Road to Get Your VA Disability Claim Granted

You could very well use some help.  Please reach out to us and we’ll connect you with a VA claims expert to manage your appeal. 


Need Help With Your Disability Claim?