Appeals Process and Evidence

[glashutte 6]

Hello. For future reference is someone able to answer the following:

 

If we appeal our initial VA claim based upon VA showing not service connected, are we able to file an appeal using evidence that we have already submitted IF we feel the VA actually did NOT look at the evidence previously submitted?

in other words does the evidence for this type of appeal HAVE to be new? Or can we do some kind of appeal to have the original evidence reviewed 

[GBArmy 1,447]

glashutte You can appeal by HLR, where you don't have additional evidence. You also could appeal to the BVA and chose the no additional evidence lane as well. If you can convince the DRO that the evidence is there and s-c is the reason why you were denied, the HLR might be your quickest option. Other than time, you don't have anything more to lose.

[glashutte 6]

Thank you! This answer is very helpful and helps kickstart my research 

[broncovet 4,251]

GB Army is spot on.  You can appeal with or without new evidence.  HLR is one method, but you can also appeal to the BVA if you feel VA did not read your evidence.  (It happens a lot).  

Remember, better than 3/4 of the claims which reach the board are either remanded or overturned (awarded).  This means there was one or more errors in the original claim about 80 percent of the time, and that error was "not" in the Veterans favor.  

[vetquest 1,032]

It seems that VA errors never go in the veteran's favor.  I would go with an HLR with the statement that the evidence might have been overlooked.  You should see a list of the evidence they reviewed and your information should be on this list in your decision.  If it is not, you know they did not consider it.  If it is listed on the "evidence" portion of the letter then they may not have given it reasonable weight or ignored it.  The BVA chastised the RO in my appeal when enough consideration was not given to lay evidence.  This does not appear to be an isolated incident.  

[paulstrgn 450]

I would suggest submitting the evidence again when you file an HLR. I always make sure they have the evidence I want looked at every time I file, no matter how many times before I had submitted it. 

Good luck!

[glashutte 6]

If submitting for an HLR for ONLY condition A in claim #1, can the senior reviewer decrease or revoke any % decision made by the junior reviewer for conditions A-Z for claim #1?

[broncovet 4,251]

DO NOT SUBMIT "new evidence" when filing HLR!!!  Its specifically prohibited with HLR.  If you have new evidence, go with either SCL, or Board appeal "with new evidence".  

Submitting new evidence with an HLR is a procedural error, and VA comes down hard on us for those!!!

[awgv001 97]

1 hour ago, broncovet said:

DO NOT SUBMIT "new evidence" when filing HLR!!!  Its specifically prohibited with HLR.  If you have new evidence, go with either SCL, or Board appeal "with new evidence".  

Submitting new evidence with an HLR is a procedural error, and VA comes down hard on us for those!!!

O_o yikes. What happens when that happens?

[Buck52 3,236]

Good thing you chimed in broncovet about not submitting new evidence in the HLR...I was going to say something  on this  but you beat me to it  good catch.

 if he/she don't go the Supplemental  Claims Lane  then and hoping to have this claim adjudicated within the 95 -125 days  or He /she may want to look at the BVA to submit new evidence. 18 months or later

https://www.benefits.va.gov/WARMS/docs/admin28/M28R/Part_III/Appeals_Process_Higher_Level_Review_Flowchart.pdf

Edited January 20, 2020 by Buck52

[broncovet 4,251]

Well, Idk what happens when "new evidence" is submitted with an appeal "that prohibits new evidence", but "you dont want to find out".  Worst case:  Va deposits it in the trash can, (along with the rest of your cfile) and you find out later..after the appeal period is over and its too late to do anything about it, and you have zero records, ever.      Best case is someone processes your paperwork who is "Veteran friendly" and it gets sent back to you for a do over.  

Minumum it will cost you time.  Or worse.  

Edited January 21, 2020 by broncovet

[Buck52 3,236]

HERE IS A BREAKDOWN ON WHAT LANE A VETERAN SHOULD CHOOSE  

Option 1: Higher-level Review

Your claim is reviewed by a more senior claims adjudicator and involves:

A higher-level de novo review (new look) of the decision

No submission of new evidence allowed

The possibility of overturning the decision based on:

A difference of opinion

A clear and unmistakable error

The reviewer, who identifies or learns of a duty to assist error, can return the claim to the regional office for correction. You or your representative can request an informal phone call to identify specific issues.

Option 2: A Supplemental Claim Lane

You can submit or identify new and relevant evidence to support your claim. VA will provide assistance in developing the evidence.

Option 3: Appeal Lane for Appeals to the Board

This option allows you to appeal directly to the Board of Veterans’ Appeals. You can choose between three options:

Direct review: You have no new evidence and do not want a hearing.

Evidence submission: You have new evidence, but do not want a hearing.

Hearing: You have new evidence and want to testify before a Veterans Law Judge.

[Buck52 3,236]

I RECOMMEND OPTION #2 SUPPLEMENTAL CLAIM LANE.

Just depends on the issues you have with your claim.

[blahsaysme2u 155]

6 minutes ago, Buck52 said:

Option 3: Appeal Lane for Appeals to the Board

This option allows you to appeal directly to the Board of Veterans’ Appeals. You can choose between three options:

Direct review: You have no new evidence and do not want a hearing.

Evidence submission: You have new evidence, but do not want a hearing.

Hearing: You have new evidence and want to testify before a Veterans Law Judge.

my vso is having me choose hearing, but i dont have any new evidence. will this be flaw in my case? 

thanks

[GBArmy 1,447]

You can go to the BVA and use the no- additional lane. Do you have a lot of confidence in your vso? He wants you to use the VBA but he doesn't want you to try the HLR lane , which doesn't allow new evidence, first. He must have a reason; I'd find out why. IMO.

[blahsaysme2u 155]

was for a denied CUE. i have post on it on another thread if you look up my thread on Sleep apnea...dont want to highjack the OP question/post. 

https://community.hadit.com/topic/77463-sleep-apnea/page/2/#comment-483053

Edited January 21, 2020 by blahsaysme2u

[glashutte 6]

2 questions if anyone knows:

How many supplemental claims can we make when making our appeal for the same condition? So if VA denies condition, can we just submit new evidence from doctors seen every time over and over?

 

When making an appeal is it for the entire claim (conditions a-z) or just each individual condition? This is because some conditions I want to submit HLR and some conditions I want to submit Supplemental claim. 

[JKWilliamsSr 107]

1 hour ago, glashutte said:

How many supplemental claims can we make when making our appeal for the same condition? So if VA denies condition, can we just submit new evidence from doctors seen every time over and over?

The evidence has to be new and material so if you are denied you will need to submit different evidence.  

1 hour ago, glashutte said:

When making an appeal is it for the entire claim (conditions a-z) or just each individual condition? This is because some conditions I want to submit HLR and some conditions I want to submit Supplemental claim.

When you file an appeal it is for a specific disability.  The same is for an HLR. The difference is for an HLR you cannot submit new evidence.

Edited January 23, 2020 by JKWilliamsSr

[glashutte 6]

22 minutes ago, JKWilliamsSr said:

The evidence has to be new and material so if you are denied you will need to submit different evidence.  

When you file an appeal it is for a specific disability.  The same is for an HLR. The difference is for an HLR you cannot submit new evidence.

If I keep getting denied after submitting new Supplemental claims, and then finally it becomes granted months later - does the retroactive pay to back to the date of the appeal, date of their decision rating, or date of ITF?

 

Once submitting HLR and after it has been reviewed completed, can I appeal again for the same condition with Supplemental?

[JKWilliamsSr 107]

15 minutes ago, glashutte said:

If I keep getting denied after submitting new Supplemental claims, and then finally it becomes granted months later - does the retroactive pay to back to the date of the appeal, date of their decision rating, or date of ITF?

The effective date will always be the date of the supplemental appeal filing.  For example you file a supplemental claim in June 2018 and that is denied.  You file a new supplemental claim in Feb 2019 and that claim is granted the effective date will be Feb 2019.  However if you are within the appeal period (1 year)  I would file an appeal to the BVA.

 

18 minutes ago, glashutte said:

Once submitting HLR and after it has been reviewed completed, can I appeal again for the same condition with Supplemental?

Yes you can file a supplemental claim but it will need to be with new and material evidence.  If you do not have additional evidence then the recommendation would be an appeal to the BVA.

[broncovet 4,251]

Effective dates are controlled by the following regulations, and will be the LATER of the facts found or date of claim with multiple exceptions, found below:

Quote

(1)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(2)For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:

(A)

A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(B)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(C)

A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(D)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision.

(E)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.

(3)

Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(2)

(A)

The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B)

For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C)

This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

(4)

(A)

The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B)

A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c)

The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d)

The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)

(1)

Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.

(2)

In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f)

An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g)

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h)

Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i)

Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j)

Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.

(k)

The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.

(l)

The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.

[(m)

Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.]

(n)

The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1226, § 3010; Pub. L. 87–674, § 3, Sept. 19, 1962, 76 Stat. 558; Pub. L. 87–825, § 1, Oct. 15, 1962, 76 Stat. 948; Pub. L. 91–376, § 7, Aug. 12, 1970, 84 Stat. 790; Pub. L. 91–584, § 13, Dec. 24, 1970, 84 Stat. 1578; Pub. L. 93–177, § 6(a), Dec. 6, 1973, 87 Stat. 696; Pub. L. 93–527, § 9(b), Dec. 21, 1974, 88 Stat. 1705; Pub. L. 94–71, title I, § 104, Aug. 5, 1975, 89 Stat. 396; Pub. L. 97–66, title II, § 204(b), Oct. 17, 1981, 95 Stat. 1029; Pub. L. 98–160, title VII, § 703(1), Nov. 21, 1983, 97 Stat. 1010; Pub. L. 98–223, title II, § 213(3), Mar. 2, 1984, 98 Stat. 46; Pub. L. 98–369, div. B, title V, § 2501(a), July 18, 1984, 98 Stat. 1116; Pub. L. 99–576, title VII, § 701(63), Oct. 28, 1986, 100 Stat. 3296; renumbered § 5110 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §§ 4(a)(2)(A)(vi), (b)(4)(B), 5(c)(1), Aug. 6, 1991, 105 Stat. 403, 405, 406; Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688; Pub. L. 108–454, title III, § 305, Dec. 10, 2004, 118 Stat. 3611; Pub. L. 112–154, title V, § 506, Aug. 6, 2012, 126 Stat. 1193; Pub. L. 115–55, § 2(l), Aug. 23, 2017, 131 Stat. 1110.)