The Substantive Appeal or VA Form 9 must be filed within 60 days of the date of the mailing of the SOC or within the remainder of the one-year period from the mailing of the notice of the rating decision, whichever is later. See attached sample form. The purpose of the Form 9 is to transfer jurisdiction of the appeal to the BVA. If a claimant fails to file a timely Form 9, then the rating decision will become final. An extension of time is available if the claimant has “good cause.” See 38 C.F.R. § 20.303.
In the Form 9, the claimant will place VA on notice of the arguments and contentions as to VA error. It is also his opportunity to request a BVA hearing. The form will also require the claimant to identify which of the issues he is appealing.
In order to avoid any problems, it is recommended that you file the Form 9 as soon as possible. As with the NOD, if the Form 9 is postmarked on or before the 60th day it will be considered timely. See 38 C.F.R. § 20.305(a).
With any important submission to a VA regional office, it is recommended that it be sent via certified mail. The VA is notorious for misplacing mail, and the certified mail will enable the attorney to prove VA’s actual receipt.
There is an exception to the 60-day rule: if the claimant submits new evidence within the one-year appeal period and the VA issues a Supplemental Statement of the Case (SSOC), then the claimant would have 60 days from the date of the SSOC to file his Form 9. Thus, even if the claimant missed the deadline for filing his Form 9, if the VA issues an SSOC in response to evidence received within the one-year appeal period, the claimant would have 60 days from date the SSOC was mailed to file the Form 9.
Supplemental Statement of the Case (SSOC)
The VA issues an SSOC in response to evidence submitted after the issuance of the SOC. There may be many SSOC’s in a case due to the continual submission of evidence before the case is sent to the BVA. If the claimant wishes to respond to the SSOC, he must do so within 30-days from the date it was mailed. However, there is no requirement that a claimant respond to the SSOC.
Important Considerations Regarding the Form 9
The Substantive Appeal is almost always filed on a VA Form 9. However, the Substantive Appeal can be in the form of a letter so long as it contains the required information. See 38 C.F.R. § 20.202.
If the attorney intends to submit a brief later in the process, he need not present extensive argument at the time the Form 9 is submitted. However, in order to preserve all potential issues, the advocate should use broad and inclusive language in the Form 9. But the claimant must provide some indication that he wishes to raise a particular issue for appeal. In the case of Sondel v. Brown, 6 Vet. App. 218 (1994), the CAVC observed that the claimant need not make an express or detailed indication, but his Form 9, other documents, or oral testimony must provide some suggestion that he intends to raise a particular issue before the BVA.
In the event that the Substantive Appeal is deemed inadequate by the BVA, the appeal could be dismissed. Thus, to avoid this risk, it is recommended that the claimant provide an express indication as to the issues he wishes to raise on appeal, as well as the broad and inclusive language necessary to preserve issues or legal theories that were not previously mentioned.
Finally, the Form 9 asks the claimant to specify whether he wants to have a hearing. There are several types of hearings:
- Travel Board hearing: This is an in-person local hearing at the RO by the Veterans Law Judge assigned to the case.
- Washington, D.C.: This is where the claimant travels to Washington, D.C. to appear at the BVA before the judge assigned to the case.
- Videoconference hearing: This is where the claimant would testify via videoconferencing at the local RO.
The claimant is permitted to submit his argument and evidence at any time before the case is certified to the BVA. Even then, the claimant is afforded 90 days from the date the of the case’s certification to the BVA to submit additional evidence and argument. In general, once the Form 9 is filed, then the attorney should review the file to determine if there is any additional development that needs to be done, and then prepare the final brief and evidentiary submission.