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What Is The First Step After Being Denied Claim


OnRiver

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What does one do after being denied part of a cliam? could someone give me the sequence that I should take with what to do and what not to do.

Thanks

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Overview of the VA Claims Process

http://www.vetadvocates.com/overview/Index.htm

CLAIMANT'S BURDEN

The United States Congress created a totally and completely unique veterans' benefits system. Under the veterans' benefits system a veteran, a veteran's dependents or a veteran's survivors are required only to submit a "plausible claim" for an entitlement to VA benefits. Once a plausible claim has been submitted, the burden to fully and completely develop evidence to support that claim is by federal law upon the Department of Veterans Affairs.

ENTITLEMENT TO A DECISION

A claim must be in writing. A claim may be submitted at any one of 58 Regional Offices of the Department of Veterans Affairs. Every state in the United States has at least one Regional Office. There are also Regional Offices in Puerto Rico and the Philippines. There is also an office in Washington, D.C. for those individuals who live outside of the United States.

Once a claim has been submitted to a Regional Office, the Regional Office is required to render a decision. The decision should only be made after a fully and sympathetically developed consideration of the evidence. The veteran will receive a written notice of the decision of the Regional Office. This notification of action will only inform the veteran that the claim has been granted or denied.

NOTICE OF DISAGREEMENT REQUIREMENT

In the event that a veteran desires to appeal the denial of benefits, a Notice of Disagreement is required to be submitted by the veteran to the Regional Office. There is no required form for a Notice of Disagreement. The Notice of Disagreement must simply express disagreement with the denial of benefits. Upon receipt of a Notice of Disagreement the Regional Office must prepare a Statement of the Case.

STATEMENT OF THE CASE

A Statement of the Case is required by law to explain to the veteran the reason for the denial of benefits. The Statement of Case should also provide notice to the veteran of the pertinent or controlling statutes and/or regulations relied upon by the Agency to support the decision to deny benefits. The Statement of the Case will inform the veteran that in order to perfect an appeal of a denial of benefits, the veteran must execute and submit a VA Form 9. This Form will be included in the mailing from the Regional Office with the Statement of the Case.

PERFECTING THE APPEAL

In order to perfect an appeal for review of a denial of benefits by a Regional Office, the veteran must not only file a Notice of Disagreement, but must timely file a VA Form 9. This is a two-step appeal process; completing the first step and omitting the second step will not result in a perfected appeal. The VA Form 9 must be filed either within 60 days of the receipt of the Statement of the Case, or within one year of the Notice of Action by the Regional Office denying the claim, whichever is later.

ACTIONS BY THE BOARD OF VETERANS APPEALS

Once a veteran has perfected an appeal, the claims folder is transferred to the Board of Veterans' Appeals in Washington, D.C. The BVA is the final administrative process before going to Court. The Board may take anyone of four different actions in a veteran's appeal. The Board may affirm the decision of the Regional Office. This would be an adverse decision to the veteran and would allow the veteran to appeal to the Court. The Board may reverse a decision of the Regional Office and grant the benefits sought by the veteran. In this circumstance, the decision would be favorable and there would be no basis for an appeal to Court. The third option is for the Board to remand the case for further development to the Agency of Original Jurisdiction, the Regional Office. A remand is not an adverse decision. A remand merely continues the administrative appeal by returning a case to the Agency for further proceedings.

Once the Regional Office receives a remand, the Regional Office is required to complete the instructions or directions for further development provided by the Board. The length of time this process takes is dependent on the nature of the remand instructions. In the event that the Regional Office confirms the prior denial, the Regional Office will issue a Supplemental Statement of the Case. Following the receipt of a Supplemental Statement of the Case, the veteran's claims folder should be returned to the Board to complete appellate review. Upon return to the Board, the Board still has all four options available as though this was an original appeal.

The final option for the Board is what is called a referral. A case is referred back to the Agency when the Board feels that an issue or a claim which should have been developed was not, and the Board directs the Regional Office to decide that issue and give the veteran notice of that decision. In this circumstance, the veteran is required to file a Notice of Disagreement with such ratings action. Another circumstance in which a referral would be appropriate is when the Board failed to include in the Statement of Case a claim or issue raised by the veteran in the Notice of Disagreement. In such a situation, a referral back to the Agency of Original Jurisdiction would be issued directing the Regional Office to issue a Statement of the Case on the omitted claim or issue.

JUDICIAL REVIEW

A veteran has 120 days from the date stamped on the adverse BVA decision to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. A Notice of Appeal which is filed after 120 days will be accepted by the Court but will be ultimately challenged by the VA's General Counsel, and in all likelihood the appeal will be dismissed due to the untimely filing of the Notice of Appeal.

RECONSIDERATION OF THE BOARD OF VETERANS' APPEALS DECISION

VA regulations provide that a veteran at anytime may ask or seek Reconsideration by the Board of Veterans' Appeals of any prior adverse decision. In the context of a current decision, if the veteran files a Motion for Reconsideration within 120 days of the adverse decision, then the time for filing a Notice of Appeal to Court has been tolled. Tolled means it is stopped or suspended. The time for filing a Notice of Appeal when a Motion for Reconsideration has been filed within 120 days of an adverse Board decision suspends the time for filing a Notice of Appeal in Court until the Board has acted on the Motion for Reconsideration. Upon receipt of the decision on the Motion for Reconsideration, the date file-stamped on the Board's letter denying the Motion restarts the 120 day time period. This means a veteran has 120 days after a decision denying a Motion for Reconsideration to file an appeal with the Court.

Although there is no time limit for filing a Motion for Reconsideration, any Motion for Reconsideration filed after 120 days, while it will be accepted and decided by the Board, DOES NOT toll the time for filing a Notice of Appeal. This is a common mistake and misunderstanding which many pro se veterans make. The BVA's Notice of Appellate Rights is somewhat confusing and misleading in this regard. A veteran should consult with a competent veterans law practitioner after receiving any decision from the Board of Veterans' Appeals.

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Adora,

Great to see you poppin in some.

Carlie

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