How a VA Appeal Lawyer Can Help with Your VA Appeal Process

VA benefits can be an essential part of adapting to civilian life following your active service. When you have a current disability or condition linked to your active service that negatively impacts your life and results in medical costs, lost income, and other hardships, you need the VA benefits you are entitled to. However, the process to collect the benefits to which you are entitled can take time and effort. Mistakes at any point in the process can lead to a denial, underlining the importance of approaching each stage with care. 

The appeals process can be intimidating if your VA benefits claim has been denied. Submitting incorrect information can delay the process even further, delaying your receipt of compensation. A VA Appeal lawyer from our firm can work with you through every step of the VA appeal process to ensure you collect the full benefits you deserve.  

To understand the VA appeal process, you must first understand that currently there are two appeal systems.  The original system is called the legacy system, and it refers to older appeals that go started before February 19, 2019.  The newer system is under the Appeals Modernization Act (“AMA”).  Both systems will be discussed below.

Required Forms and Documentation to File a Legacy VA Appeal

The first step in the legacy appeals process, if a Veteran’s or their dependents’ application for benefits has been denied, is the Notice of Disagreement, or NOD. To begin the process, you’ll file VA Form 21-0958, the Notice of Disagreement, to begin the appeals process. 

Through 38 C.F.R. Sec. 20.201(2012), the NOD is defined as a “written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency or original jurisdiction and a desire to contest the result.” This language is typical within the VA benefits application process and can be confusing. Failure to provide all of the information requested can lead to the delay or denial of your benefits. 

For your NOD to be effective, it is necessary that you adequately express disagreement and a desire for appellate review. Our experienced VA appeal lawyers have years of experience drafting successful NODs and will ensure that the necessary language is included to get your appeal moving. 

How to Strengthen Your Appeal 

If your initial application for benefits was denied, that means that the VA felt that there was insufficient evidence included in your initial application to justify approval. You and your family can be responsible for the associated costs when you are denied benefits altogether or only granted benefits that partially cover your costs. 

Building upon your appeal with additional evidence can be difficult without the assistance of an experienced veterans’ benefits lawyer. We have an in-house physician and network of medical experts to gather the evidence we need to wholly and accurately measure and rate your VA disability. 

Medical Records

The benefits you are entitled to depend on the rating of your current conditions and disabilities once they are service connected. VA disability is rated on a scale of 10 percent to 100 percent, and increased in 10 percent increments. The percentage rating for multiple disabilities is added together to determine your total disability, which impacts the amount of tax-free compensation that you are entitled to. 

Medical records are often essential to building a solid case, and if your initial application did not contain them, your appeal can. Our veterans’ benefits attorneys will carefully review your pre-service, service, and post-service medical records to identify conditions that could lead to you being entitled to benefits. 

Expert Opinions

When you appeal a decision with the VA, there are options that allow you to submit additional information and evidence with your appeal. We have an in-house physician capable of accurately assessing your current condition and a network of medical and occupational experts to collect further evidence supporting your appeal. In addition, sometimes your appeal will require an expert opinion from a vocational expert, which is often the case when you have an appeal pending for total disability individual unemployability (“TDIU”).

Finding medical or vocational experts whose opinions the VA will recognize can be difficult, and scheduling them can be even more challenging. Our veterans’ benefits law firm has an established network of professionals with whom we’ll schedule appointments on your behalf, removing the stress and uncertainty from the process. 

Buddy Statements 

To submit a “buddy statement,” you may use VA Form 21-4138, which allows you to submit a statement from an individual with firsthand knowledge or information that may help to support your request for VA benefits. These statements allow the veteran to present an account of an event that led to their present condition and their behavior and abilities before and after the event.  

Buddy statements and other evidence can be essential to supporting an overturning of your claims denial, and your VA appeal attorney will determine how to best use this form of evidence and others in support of your appeal. 

Appeal Option for a DRO 

The classification of your appeal and its process will depend upon whether the decision was dated before February 19, 2019, which would make your claim a legacy claim, or thereafter, in which case it would be an AMA appeal. Since we are discussing legacy appeals, once you file your NOD you can choose to have a decision review officer (“DRO”).  This is an alternative to the traditional legacy process.   It gives you an opportunity to have your case reviewed by a more senior VA adjudicator.

DRO hearings

The DRO process does afford you the option of a conference with the DRO adjudicator.  This is a new review of an issue or issues that the VA had previously based on the evidence of record. The review is to be conducted by a more senior VA adjudicator.  These hearings are informal in nature and give you the opportunity to dialogue with the VA decision maker about issues in your case.  Often these hearings can help to identify holes in the case that you can later fix.

VA appeals lawyers agree that it is advantageous to submit a written argument to identify issues of fact or law in your appeal. This can save time and move your appeal along, and your attorney can help determine whether this is the best option in your case.  

Traditional Review Process 

Unless you opt for the DRO process under the legacy system, your legacy appeal will proceed as a traditional appeal.  The traditional review process proceeds as follows:

  1. For older decisions, the Notice is Disagreement (NOD), VA Form 21-0958, is filed within 1 year of the date on which you received your decision letter. For new appeals concerning decisions made on or after February 19, 2019 you must take advantage of 1 of the 3 new decision review options under AMA, which is explored below. 
  2. Following the filling of your NOD, the VA will review the evidence related to your appeal, including any additional evidence that you have included. When the VA determines that there is insufficient evidence to fully grant your appeal, you are provided with their finding through the document called the Statement of the Case (SOC). 
  3. Should you disagree with the SOC, then you may be able to opt into 1 of the 3 new decision review options under AMA, but if your SOC wass dated before February 19, 2019, you’ll remain in the legacy appeals process. The decision of whether to opot into AMA or not is an important one that we do not recommend making without consulting with your VA appeals lawyer.  Such a decision can have ramifications that you must fully understand before doing so.  Assuming you are remaining in the legacy system, you must file a VA Form 9 to your VA regional office within 60 days from the SOC’s date to continue with your appeal.  This is called the Substantive Appeal to the Board of Veterans Appeals.  If you fail to file your Form 9 in time, your appeal will be dismissed.

Appeals to the Board of Veterans’ Appeals 

Appeals to the Board of Veterans’ Appeals (BVA) are supported through the AMA as well as the legacy system. If you have a legacy appeal to the Board, then there is only one appeal mechanism and it is standard under the legacy system.  The only difference is that you still have the option for a hearing in a legacy Board appeal.  But when appealing to the BVA under AMA, you can choose between 3 options: 

  • Direct review – you want your file to be reviewed as-is without the submission of additional evidence and without a hearing. 
  • Evidence submission – you have additional evidence to submit but do not want a hearing.
  • Hearing – through this option, you can submit additional evidence and have a hearing with a Veterans Law Judge. 

Appeals to the BVA can take several years to process, so this option may not be the most efficient or expedient for a decision. However, in our professional experience, you are more likely to obtain an accurate decision at the Board than you are at the lower levels of the VA appeal process.  As such, the wait may be worth it. The unique facts and circumstances of your situation will determine what strategy works best for you, and our veterans’ benefits law firm is here to help. 

VA Form 9 and Your Substantive Appeal 

The VA Form 9, also referred to as the Substantive Appeal Form, is how you present your appeal to the BVA and is a key step in the process. But the SOC and Form 9 only apply to legacy appeals, and there are fewer and fewer SOC’s being issued as AMA appeals are starting to become the dominant factor in the appeals system.  It is included with your Statement of the Case (SOC) when the VA has decided on your appeal. The VA Form 9 allows you to contest information on the SOC and present additional evidence. This additional evidence can impact your BVA appeal. 

It is important to note that, as detailed by the VA, you must return VA Form 9 to the VA regional office within 60 days from the SOC or within the remainder of the one year period following the denial, whichever is later. The Veterans Benefits Administration can take significant time to review appeals and to determine whether all or part of the appeal will be granted. 

The outcomes of a BVA appeal include: 

  • Remand – it is sent back to the regional office for additional development
  • Grant – your appeal may be granted in whole or in part
  • Denial – your appeal may be denied 

The average processing times for cases that have gone through the BVA or Court process can sometimes take 5-7 years.  However, the odds of getting an accurate and favorable decision are higher with BVA appeals.  So, we counsel clients not to be afraid of the wait times because often it is a more direct route to a favorable outcome.  The focus on quick decisions usually comes at the expense of accuracy.  After all, what is the point of a quick denial?

Appeals Modernization Act (AMA)

The Veteran Appeals Improvement and Modernization Act (AMA) of 2017 has changed how veterans, their families, and their survivors in the event of a service-related veteran death handle disagreements with the VA’s decisions. The AMA provides these individuals with increased choice in how to approach their disagreement, as the AMA has implemented a new appeals system. Which strategy to use under AMA can be complicated and the advice of an experienced VA appeals lawyer can help.  The new appeals system is meant to provide you with timely processing under the new appeals system. 

The purpose of the AMA is:

  • To modernize the claims and appeals process
  • Provides for  3 decision review options when you disagree with benefits decisions 
  • Has established greater notification requirements for VA decisions
  • Is supposed to provide for the earlier resolution of claims
  • Ensures that Veterans and other filing parties receive the earliest possible effective date for any benefits that are awarded by allowing them to continue to keep a claim alive so long as they exercise one of the appeal options within 1 year of a VA denial. 

You’ll generally be able to participate in the AMA if you submit a completed application within 60 days of the SOC in legacy cases or within the 1-year appeal period from the date of the denial in AMA cases.  However, do not opt into AMA within 60 days of an SOC without speaking with a veterans appeals lawyer. 

Review Options

Through the AMA, 3 new options for review have been established:

  1. Higher-level review – your claim is reviewed by a more senior claims adjudicator on a de novo or new look basis, and while there is no new evidence allowed, a decision can be overturned based upon a difference of opinion or a clear and unmistakable error. If the reviewer identifies or learns of a duty to assist error, they are able to return the claim to the regional office for correction. When applying, you or your representative may request an informal conference to look for errors of law or fact in the decision, something your VA appeal lawyer from our veterans’ benefits law firm can assist you with. 
  2. Supplemental claim – you are able to submit or identify new and relevant evidence in support of your claim. The VA will even provide you with assistance in developing the evidence, and this pathway will also be supported through your VA appeals attorney. 
  3. Appeal to the Board of Veterans’ Appeals – explored above.’

Each of the appeal options has a purpose and the circumstances of each case determine which lane to choose.  

Connect with a VA Appeal Lawyer from Our Veterans Benefits Law Firm 

To get started with your initial case review, give us a call at 888-915-3843, or visit our site to schedule a free case evaluation