The Appeal Process, Steps

[Guest jangrin]

If there is someone who feels comfortable in giving a synopsis of what happens in the claim process if the initial claim is denied and the veteran elects to appeal the decision to the BVA. What is the process the veteran needs to do to have the claim looked at by the BVA.

Maybe someone could go through process of asking for an RO review (?) or NOD (?) as well. Time limits etc. We are trying to decide which way we will go when we appeal the findings on the initial claim.

It would be nice to be able to keep this post as a reference for use later.

Thank you very much.

[Berta]

Jangrin- the BVA has an excellent reference manual at

http://www.va.gov/vbs/bva/

to explain the appeal process and they used to send out a pamphlet when a claim got a docket number.I dont know if they still do that.

I think others here will have a good step by step account for you to follow-actually I think this was posted in the past here but sometimes it is hard to find stuff under a search.

I just wanted to add that the VBM (NVLSP) recommends asking for a DRO review right in the formal Notice of Disagreement. I think some vets here have done that.

[Guest jangrin]

Thanks Berta,

Lately it seems the rating decisions comming out of the VARO have been very negative. We are starting to gather up evidence and medical information so we can prepare for filing an appeal. We are struggling with whether to file a NOD and ask for a DRO to review the decision or if we should get appeal to the BVA.

We do not know anything about the appeal process as we have had tunnel vision just getting the claim and thqat evidence in. Now we are having to expand and move on to bigger and better things. Not what we planned but things are not looking good right now for the RVN veterans and their claims.

I will start reading the manual/pamp.

Jangrin

Edited January 13, 2007 by jangrin

[Guest jangrin]

Over the past year we have read many posts having to do with the appeals process and veterans talking about which path to take, (1) appeal to the BVA, or (2) DRO hearing.

A year or two ago the initial claims process may not have taken quite so long, but now it seems that it is a minimum of 18 months or longer for the RVN and older vets to recieve a claim rating on an initial claim.

More recently we have watched as the ratings are simply "low-balled" or the evidence was not even considered, and most all claims are having to be appealed. That really has not endeared us to the VARO and their decision making rational on claims.

How much more time would be added to an appeal if the veteran file a NOD and ask for a review (reconsideration) by the VARO? And if you did that would you then be able to file an appeal to the BVA or are you then stuck having a DRO hearing?

Jangrin

Edited January 13, 2007 by jangrin

[Objee]

Over the past year we have read many posts having to do with the appeals process and veterans talking about which path to take, (1) appeal to the BVA, or (2) DRO hearing.

A year or two ago the initial claims process may not have taken quite so long, but now it seems that it is a minimum of 18 months or longer for the RVN and older vets to recieve a claim rating on an initial claim.

More recently we have watched as the ratings are simply "low-balled" or the evidence was not even considered, and most all claims are having to be appealed. That really has not endeared us to the VARO and their decision making rational on claims.

How much more time would be added to an appeal if the veteran file a NOD and ask for a review (reconsideration) by the VARO? And if you did that would you then be able to file an appeal to the BVA or are you then stuck having a DRO hearing?

Jangrin

Jangrin,

You may have come up with an interesting approach to appeals. A reconsideration is not the same as a DRO review. I have no idea how the RO would treat a request for reconsideration along with a Form 9. This MIGHT be a way to go to BVA quicker and still get a local review. Dunno, but it'd be interesting to find out. Any sea lawyers here that might know??

Ralph

[Stretch]

Conjecture.

Anything left for guess work or interpretation of the RO or VA, will be exploited with delays. This is the way that I sea it. Maybe someone wants you to be their guinea pig, but I would suggest that you stick with tried procedures.

[Vike17]

Jangrin,

I posted the different appeals steps a couple of times already, but i'll try to explain them again.

In any type of appeal, the first step is submitting a Notice of Disagreement (NOD) with your regional office telling them why you disagree with a decision made by them. In the NOD you should also specify which way you wanted your appeal handled i.e. the traditional way (BVA), or through a DRO review. If you don't the VA will send you a letter asking which one you want. You then have 60 days from the date of that letter to choose. If you don't answer the letter, the VA automatically processes the appeal through the traditional process. Also in the NOD you should state if you want a hearing or not.

A DRO review is where a Decision Review Officer, hence DRO, who is a senior rater with many years of experience that works in the appeals Team, will completely review your claims folder and NOD and decide whether or not he/she can grant the benefit the claimant is seeking. If the DRO grants the appeal in full, he/she will produce a rating decision telling the claimant of the percentages ect... just like the Rating activity would on a normal claim. If the DRO cannot grant the appeal in full, then he/she will issue a Statement of the Case (SOC) explaining the actual laws and rational which pertain to the denial. Even if the DRO is able to grant a partial appeal, they still must send out a SOC. For example, let's say you are appealing a PTSD rating of 50%. The DRO grants an increase to 70%, but since the DRO didn't/couldn't grant the highest possible award pertaining to the disability, they must still produce a SOC. In this scenario, the DRO would send out a rating decision with the grant in increase from 50% to 70%, and a SOC stating why he/she couldn't grant the full benefit allowable i.e. the 100% rate. Once a claimant receives a SOC, they have 60 days from the date of the SOC to either "perfect' their appeal by submitting VA Form 9, which will prompt the RO to send the appeal to the BVA, or submit 'New" evidence that were not before the decision maker when he/she made their prior determination. When the claimant submits "new" evidence, the VA will evaluate the new evidence and either grant the benefit sought on a appeal or issue a Supplemental Statement of the Case (SSOC) outlining why the new evidence was unable to be used to grant the appeal. A SSOC will only address the new evidence the claimant submitted. From the date of the SSOC the claimant again has 60 days to either "perfect" the appeal by submitting VA Form 9, or again submitting "new" evidence. If the claimant submits new evidence again, then the process of either a grant in benefits or a SSOC will repeat itself until the claimant "perfects" their appeal.

The traditional appeals process is where the claimant wants to skip the DRO review and appeal directly to the BVA. In this case, the claimant still must send a NOD to the VA. The VA, more specifically the rating activity that made the prior decision, will send out a SOC. Once the claimant receives the SOC the process afterwards is the same as when the DRO issues a SOC. You either can submit "new" evidence and have the Rating activity reconsider their previous decision, which will either prompt them to grant the benefit sought or they will send you a SSOC, or you can "perfect" your appeal by sending in VA Form 9. Once the VA Form 9 is sent in, the regional office then prepares your claims folder for the BVA where it gets put on the docket.

Another route that may be of some interest is the "reconsideration" route. This is where a claimant has received a rating decision and may disagree with that decision, but has "new" evidence that the Rating activity was unaware of at the time of their decision, and may think that the "new" evidence might result in a more favorable decision than the prior one. In this case the claimant has the one year appeals period to send in the "new" evidence and request that the Rating Activity "Reconsider" their previous decision. The claims folder would then go back to the Rating activity to be reconsidered and the RVSR would send out a new rating decision where the "new" evidence and possibly a new rating would be discussed if warranted. A request for reconsideration generally goes faster then an appeal because the claims folder goes back to the RVSR and is worked according to the original effective date. One thing to keep in mind is that if you request a "Reconsideration" with "new" evidence, you must do this within the one year appeals period. If you don't, then the VA must "Re-open" the claim and you loose your original effective date. Another thing to keep in mind is that if you send in "new" evidence within the one year appeals period and it doesn't change the prior decision, the RVSR will still produce a rating decision stating such, and then your one year appeals period starts over from that rating decision again.

I hope this makes sense.

Vike 17