The VA Appeals Process
The VA appeals process can be lengthy. In other articles on this website we have discussed the statistics regarding how long it takes for an appeal to resolve. Although the VA appeals process can be lengthy and frustrating, there are strategies that you can employ that can reduce the risk of a protracted appeal process.
The first step involves developing a solid and comprehensive legal strategy. In complex cases, (such as complex PTSD, psychiatric, and brain disorders), developing a comprehensive strategy at the beginning of an appeal can guide the development of evidence to ensure that every element of the case is established. This process involves a critical analysis of the case to determine what evidence is missing and whether the missing evidence can be obtained. It also involves an honest and candid assessment of the relative strengths and weaknesses of the case.
Next, we undertake initial medical research to determine the scientific plausibility of your claim. We then retain top medical experts to provide the necessary nexus opinion to link the disability to service. This is what separates our firm from many others that will not invest their own resources in helping you acquire winning evidence. In increased rating claims for psychiatric disabilities or PTSD, it is crucial that a private expert evaluate you to provide an accurate assessment of your true level of impairment. The VA frequently low-balls the rating for mental or psychiatric disabilities. In addition, if your claim involves TDIU or total disability, we frequently retain the services of a vocational expert to give the opinion that your service-connected disabilities render you incapable of maintaining a gainful occupation.
Once all the evidence has been developed, we submit it to the VA with legal argument. But our work does not stop there. The VA will typically try to deny the claim again or obtain more VA medical opinions in an effort to manufacture evidence against your claim. An effective strategy involves remaining vigilant against VA and responding and rebutting any negative VA medical opinions. This will often require us to retain another private medical expert for the purpose of refuting the VA doctor.
You should be aware of the following:
Initial Rating Decision
If you recently received a rating decision from the VA regional office and they denied the claim or granted you a rating that is too low, then it is a good idea to consult a veterans disability lawyer. You have up to one-year to file your Notice of Disagreement to start an appeal. Once the appeal is filed, a paid veterans disability attorney can assist you. At this stage you can consider requesting a Decision Review Officer and providing new evidence in an effort to get the Decision Review Officer to issue a favorable decision. If you can convince a Decision Review Officer to grant the claim, this will usually result in the fastest possible resolution to your appeal.
Statement of the Case
If your Disagreement cannot be resolved in your favor, the VA will issue a Statement of the Case. This is a further explanation for the VA’s decision. You have 60 days or up to the remainder of the one-year period following the rating decision to file a Substantive Appeal or VA Form 9. If you fail to file your Form 9 on time, your appeal will be barred. Once the Form 9 is filed, then you must wait for the case to go to the Board of Veterans Appeals. You can hire an attorney after you receive a Statement of the Case. The strategy at this point is to fix and problems with the case by obtaining further evidence and submitting additional argument. You can waive RO consideration of the evidence and let the matter go on to the Board. Otherwise, the VA will have to issue what is called a Supplemental Statement of the Case or grant the claim based on the new evidence.
Decision by the Board of Veterans Appeals
Once the case is transferred to the Board you will be permitted up to 90 days or until the Board issues a decision to submit new evidence and argument, whichever is later. You can hire a veterans disability attorney at this stage of the process. If the Board issues a favorable decision, the matter must still go back to the regional office to have a rating decision issued so as to implement the Board’s decision. There is often a delay of 3 to 8 months for the regional office to issue a decision following a favorable Board decision.
If, however, the Board denies the claim, then you can appeal to the U.S. Court of Appeals for Veterans Claims. It is important to note that you have only 120 days following the date of the Board denial to appeal to the U.S. Court of Appeals for Veterans Claims.
You can only appeal Board denials and you cannot appeal a decision to remand. So long as your initial Notice of Disagreement was filed on or after June 20, 2007 you can hire a veterans benefits lawyer after the Board remand.
Appeal to the U.S. Court of Appeals for Veterans Claims
Once the Board issues a final denial, you have 120 days to file your notice of appeal with the Court. The forms to do this can be obtained at www.uscourts.cavc.gov. Otherwise, it is recommended that you consult legal counsel. In fact, up until this point you were dealing directly with the federal agency. But at the U.S. Court of Appeals for Veterans Claims, you are outside of the VA system. Your case is now at an independent federal court where the government is represented by experienced lawyers. It is critical that you have a lawyer at this stage. You cannot expect to compete against the experienced government lawyers by yourself. If the Board of Veterans Appeals has denied you, then you should immediately contact our office to discuss your appeal.
Under VA regulations paid counsel cannot represent you until after you have been denied and you have filed a Notice of Disagreement. Our firm adheres to the highest ethical standards and we will not represent you unless your case is at the appeal stage.