The various challenges faced by VA adjudicators result in lots of opportunities for error to be committed. The rather narrow focus of VA decision makers, who are operating inside a box defined by their manual, leads to an utter lack of imagination or tolerance for anything out of the ordinary, which also yields erroneous and unfair decisions. And then there is a fair degree of frank incompetence among VA employees, who sometimes simply don’t follow their own rules and procedures. All this is to say that the VA often fails to carry out its statutory and regulatory duties, ignores or misapplies the law, or fails to consider relevant facts. The agency provides an appeal mechanism for these occasions, and there is judicial (court) review available as well.
One basic principle to remember is that anything that has not been granted has been denied. Admittedly, that sounds obvious, but it’s not. We’ve seen VA decision letters stating that the decision reflects a complete award of the benefit sought when there is actually some aspect of the claim that remains in dispute. For example, you may dispute the rating level assigned. (VA may not be wrong technically, as the decision may address only service connection, and rating is a “downstream” issue, but for the veteran, a grant of service connection is useless without a rating, which is what controls the money he’ll be paid; so the language about a “complete grant” is misleading.)
The New Appeals System
There are now three “lanes” which you can choose from to appeal a VA rating decision. They are 1. a supplemental claim, 2. a higher level review or 3. an appeal straight to the board of veterans appeals.
Lane 1: Supplemental Claim (New Evidence). This lane is for claims that have new evidence that wasn’t submitted with the original claim. If the VA made a decision about your case, but didn’t have all the evidence and you’d like to submit additional evidence, then this is the lane for you. Only submit to this lane if you have new evidence regarding your conditions that the VA has not yet seen and that provides significant evidence to support your claim.
To apply to this lane, submit VA Form 20-0995. You can apply to this lane any time you receive new evidence within 1 year of the last decision made in your case.
Once you receive a decision from this lane, if you still disagree, you can submit another appeal to any of the three lanes, depending on your circumstances (new evidence, none, etc.).
Lane 2: Higher Level Review. This lane is for cases that do not have any new evidence and are fairly straightforward. If the VA made an error and the evidence in the claim clearly proves their error, then this is the lane for you. A difference of interpretation or opinion can also be processed in this lane, however, if you are disagreeing with a standard VA interpretation that they use regularly across the board, a higher level of appeal may still be needed. The majority of appeals that do not have new evidence will be processed correctly in this lane.
To apply to this lane, submit VA Form 20-0996. You must submit this form within 1-year of the VA’s last decision on the issues being appealed.
Once you receive a decision from this lane, if you still disagree, you can submit another appeal to Lane 1 or Lane 3.
Lane 3. Board of Veterans’ Appeals. If you have a more complicated case that won’t be cleanly processed in the other lanes, then you need to appeal directly to the Board. The Board has a higher level of authority to make decisions than the other review lanes, and so can better judge more complicated cases.
The first step in applying to the BVA is to submit VA Form 10182, Notice of Disagreement (NOD). You must submit your NOD within 1 year of receiving the decision on your original claim or on your appeal to a different lane.
On the NOD, you will need to choose a BVA review lane. You have three options:
– Direct Review: Choose this is you have no new evidence and do not need a hearing. This option will process the fastest.
– New Evidence: Choose this is if you want to submit new evidence but do not need a hearing.
– Hearing: If you want to testify in support of your claim, you can choose to have a hearing. You can also submit new evidence.
Once you receive a decision from this lane, if you still disagree, you can submit another appeal to Lane 1 or you can move on to Court of Veterans Appeals.
Appeals To The Courts
If you lose at the Board, an appeal is available outside the VA, first to the Court of Appeals for Veterans Claims (CAVC). You have 120 days from the date of the Board decision to file a notice of appeal at the CAVC. This is a simple declaration that you are appealing a Board decision of a certain date; no other argument is made at this point. The Court will set a briefing schedule, direct the parties to assemble the relevant record, conduct a mediation conference to try to resolve the case, and then decide it after all the briefs are submitted if the parties don’t reach an agreed resolution. (About half the cases do get resolved eventually by agreement between the claimant and the VA’s lawyers.)
Briefing at the CAVC (and on subsequent appeal, if any, to other courts) is full-fledged legal argument, which should be done by lawyers if the case is to be properly presented. This is the first time the claim is actively opposed (by lawyers for VA), so it’s important to meet the VA’s legal arguments competently. Briefing at the Federal Circuit is even trickier because that court’s jurisdiction has been severely limited by Congress in veterans cases.
That said, the technique of arguing veterans cases is not substantially different from how you present claims at the agency, with one very significant exception. On appeal to the courts, you must focus on the legal errors that you believe were made by the agency. You don’t get to reargue the facts the way you do at the Board of Veterans’ Appeals. The logical structure of argument, though, is essentially the same: the law dictates eligibility for benefits and requires adherence to certain procedures; the argument on appeal is that VA did not follow the law in those respects.