The VA denies a significant number of disability claims when they are reviewed during the initial claim process. This is frustrating and disappointing for veterans hoping to get the benefits they deserve. Fortunately, the VA has several options for appealing a denied claim. The most direct option for appeal is requesting a higher-level review of your original claim.
Keep in mind that this higher-level review process is part of the VA’s Appeals Modernization Act or “AMA” that took effect in February 2019. Older cases that begin their appeal process prior to February 2019 would still be within the old legacy system.
Learn more about your options for appeal and how to request a higher-level review of your claim.
VA Appeals Processes
In 2017, Congress passed the Appeals Modernization Act (“AMA”), which aimed to address the backlog of VA benefits claims and speed up the review process going forward. One of the major goals was to simplify the process of appealing claims that veterans believed were wrongly denied. The AMA allows veterans to choose between three “lanes” if they want to appeal a denied claim.
The three lanes include:
- Higher-Level Review: A veteran can request that a senior adjudicator (Decision Review Officer) review their original application and decide if the initial reviewer was wrong to deny it. The Decision Review Officer is authorized to overturn the original decision if they find errors or disagree with the denial.
- Supplemental Claim: Veterans can submit new and relevant evidence to supplement the information in their original claims. The new evidence might include additional nexus opinions for service connection, medical records, work history, or any other evidence to support a claim. The VA has a duty to assist you in locating and providing additional material for a supplemental claim.
- Appeal to the Board of Veterans’ Appeals: Veterans can choose to appeal directly to the Board of Veterans’ Appeals. This process used to take three years or longer for resolution. Under the AMA appeals system, the VA tries to render a decision in 12 months or less.
Which appeal lane you choose depends on whether you need to submit additional information or not. If your initial claim was comprehensive, requesting a higher-level review may be the best option for appeal.
In addition, in situations where your claim needs more evidence, but more time is needed to obtain the evidence, a higher-level review appeal can be filed to buy more time. Then, if the higher-level review decision (sometimes called an HLR decision) is a denial, you would have an additional year to obtain new and relevant evidence and submit a supplemental claim appeal.
Choosing a Higher-Level Review
The higher-level review lane is the most straightforward option. You can ask for a higher-level review of an initial claim decision or a decision about a supplemental claim. To request a higher-level review, you need to fill out VA Form 20-0996, which you can do online or fill out a hard copy and submit it by mail. You will need to list the specific issues you disagree with and the decision date. You cannot submit any new information to the senior reviewer. The appeal for a higher review is strictly about the claim as you originally submitted it.
In addition to submitting the form, you can request an informal conference. This is typically a phone call where you can discuss your claim with the senior reviewer assigned to your case. The informal conference is an opportunity to explain why you think the initial ruling was wrong and identify any errors in the decision.
Requesting a conference may result in a longer review process since scheduling the calls takes time.
What Happens if My Claim Is Denied Again After Higher-Level Review?
If your claim isn’t approved after a higher-level appeal, you can request another review through one of the other lanes. But you cannot request another higher-level review. A higher-level review cannot be done on a higher-level review decision. If you think there is new, relevant evidence that will support your claim, you can submit a supplemental claim and include the new information.
Alternatively, besides a supplemental claim appeal, you can appeal to the Board of Veteran’s Appeals. If you decide to appeal to the Board of Veteran’s Appeals, you will need to choose the process for your claim:
- Direct review: The Board reviews your claim with no additional information and no hearing
- New evidence submission: The Board reviews your claim with new evidence. You must submit new evidence within 90 days of the Notice of Disagreement (“NOD”).
- Hearing: You present your case, including any new information, to a judge in person. This can prolong the time for your appeal since scheduling can take a long time.
If the Board returns a denial, you can submit a supplemental claim within 1 year or appeal to the U.S. Court of Appeals for Veterans Claims (“CAVC”).
The conventional wisdom on how to navigate the new AMA appeals ladder goes something like this:
- Initial claim is denied
- File higher-level review appeal
- If HLR is denied, file supplemental claim appeal.
- If supplemental claim appeal is denied, appeal to the Board of Veterans Appeals
- If Board denies the claim, appeal to the U.S. Court of Appeals for Veterans Claims (“CAVC”)
- If the CAVC denies the claim, appeal to the U.S. Court of Appeals for the Federal Circuit
The VA is required to make findings of fact. They are bound by any favorable findings. This means that starting with the higher-level review appeal, an advocate should consider getting VA to make favorable findings of fact. By doing so, the issues in contention can be narrowed down, and you can potentially box in the VA. For example, if VA makes a favorable finding of fact that there was an in-service event that could have caused the current disability, and then makes a favorable finding a fact that there is a current disability, then the only element left to prove would be a nexus. Thus, going forward, a veteran would not need to spend time or money trying to establish an in-service event or a current disability.
In addition, any decisions you receive from VA should be carefully analyzed to ensure VA is following its required obligation to make such findings.
No matter what path you take for appealing a denied claim, you should be entitled to benefit payments retroactive to the date you began the process. In order to guarantee that, it is important to submit all forms and supplemental information by the deadlines the VA sets.
To reiterate, you have 1 year from the initial decision to file either a higher-level review appeal, a supplemental claim appeal, or a direct appeal to the Board of Veterans Appeals. Failure to take either of these actions within 1 year can change the effective date of your claim.