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How Do I Appeal

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carlie

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I received a rating of 80% service connected with 20% unemployability. I was told by regional I was fine and did not need to do a NOD. This was back in 2007. I recently watched Chris Attig's video on YouTube entitled "6 Reasons to Keep Pursuing VA Claims and Appeals AFTER you reach 100". Now I realize I made a mistake listening to them. Can I appeal and if so how?

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I am glad you mentioned Chris Attig as he is an excellent veteran lawyer.

I was told the same thing by a former vet rep in 1998 on a vastly different issue, an award letter.

He had nothing to do with the award at all but was thrilled that he could take credit for it because I had dumped the DAV and moved my POA to him, and within a few months the award letter came.

By 2003 when I re opened my claim, the older 1998 decision kept bothering me and I pulled it out and discovered it had 3 CUEs in it . They were eventually awarded. What Chris says in this video and the hard copy version here at hadit is so true.

Many reps, when you get TDIU or 100% want you to walk away and be happy with it.

 "Can I appeal and if so how?"  That decision might be correct and besides the appeal deadline has passed.

You can file a new claim, if you have an additional service connectable disability that might put you into any of the 6 criteria Chris mentions in his article/video.

Or if you have the older  rating sheet, and can scan and attach it here ( cover C file # etc prior to scanning it) there could be a major legal error in it.

 

 

 

 

 

 

http://www.hadit.com/6-reasons-keep-pursuing-va-claims-appeals-reach-100/

and the video is here:

 

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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I thought i would update this thread since the last post was pre AMA

If you receive an unfavorable decision from your Regional Office (RO) then you have some different options to consider compared to pre 2019.

NOD (Notice Of Disagreement): This is similair to the old appeal lane, however unlike the old NOD where you had to go through the RO first then the Board of Veterans Appeals (BVA) you can skip that step and go directly to the BVA.  At the BVA you can choose from 3 dockets, direct, hearing & evidence. Direct docket is for vets who do not want to submit new evidence and do not want a hearing in front of Veterans Law Judge. Evidence Docket allows for Veterans to submit new and relevant evidence and do not want a hearing.  Hearing Docket is to have a hearing before a Veterans Law Judge either via teleconference or in person in front of the Board in D.C. To use this lane you must appeal within 1 year of your denial by the RO.

If you are denied before the BVA you have 120 days to file to be heard before the CAVC, if denied there you can start a supplemental claim or appeal to the federal circuit courts

 

Supplemental Claim Lane: this allows you to submit new and relevant evidence for your claim.  Supplemental claims can be made anytime after your denial however, If you go this route you can preserve your effective date if submitted within one year of denial, if after your effective date will be the date you submitted the supplemental claim.  You can also use the supplemental claim after a denial at the BVA or Court of Appeals for Veterans Claims (CAVC).  This route also is the only one that the VA maintains its "Duty to Assist" I.e. look for evidence outside what you have submitted in your claim (VA health record, Service Record, etc), however its never a good idea to hope the VA finds what you need, do your own research and work, dont leave anything up to hope.

If you are denied you can request to have a HLR or file a NOD and go to the BVA, If you are denied before the BVA you have 120 days to file to be heard before the CAVC, if denied there you can start a supplemental claim or appeal to the federal circuit courts.

 

Higher Lever Review (HLR): This allows for Veterans to request that the RO issue a new decision based on a "senior" rater reviewing your claim de novo (new look), basically they take a brand new look at your claim to see if anything was missed.  The reviewer can overturn a previous decision based on evidene presented and CAN issue a Clear and Unmistakable Error (CUE) ruling.  You CANNOT submit additional evidence with your request for a HLR of your denial compared with a NOD or Supplemental Claim.  They will review the SAME evidence presented in your claim that the intial rater saw and issue a ruling on that.

If you are denied you have one year to file a supplemental claim or a NOD and the BVA. If you are denied before the BVA you have 120 days to file to be heard before the CAVC, if denied there you can start a supplemental claim or appeal to the federal circuit courts

 

Timeframes for decisions:

Below are the goals the VA has set for each portion of appeals, these are not guaranteed timeframes and depend on current que and variables in your case.

 

Supplemental Claims: VA’s goal for completing Supplemental Claim decisions is an average of 125 days.

Higher-Level Review: VA’s stated goal for completing Higher-Level Reviews is an average of 125 days.

Appeals to the Board of Veterans Appeals: VA lists varying adjudication timelines for each docket.

Direct Docket: VA has set a goal to decide claims in this docket within 365 days.

Evidence Docket: VA states that claims in this docket may take longer than 365 days.

Hearing Docket: Appeals in this docket are projected to take the longest amount of time to adjudicate, with wait times that may exceed 365 days.

 

Other Important Information:

It's important to note that you can "switch lanes" at any point in the appeal process prior to a decision.

Example: Your claim is denied and you opt for HLR 180 days after. 60 days after submitting the request with no decision being issued you decided to file a NOD and appeal to the BVA instead, OR you discover new & relevant evidence that supports your claim and you wish to submit a supplemental claim. You will need to submit a written request to the VA authority that has your appeal and request that it be changed along with the proper paperwork for the new lane submitted to the RO than issued the denial.

 Denials of your appeal also give you the opportunity to change your appeal.

Example: Your claim is denied at the RO, you submit a supplemental claim and that is denied you can now choose to submit for a HLR or file a NOD to appeal to the BVA.

70% - PTSD

->50% - OSA (Secondary to PTSD)

30% - Bilateral Pes Planus w/Plantar Fasciitis

30% - Migraines

10% - Tinnitus

20% - Back

0% - bilateral shin splints

 

 

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