“Our greatest glory is not in never failing, but in rising up every time we fail.” Ralph Waldo Emerson (American Poet and Essayist 1803-1882). This quote typifies the American servicemember’s fighting spirit. Unfortunately, far too many Veterans fail to apply this principle to their claims before the Department of Veterans Affairs (VA) and permit an otherwise valid claim to become final. There are statutory and regulatory mechanisms for reviving a claim once it becomes final, such as a request to reopen based on new and material evidence. Nevertheless, finality can only have detrimental effect — sometimes catastrophic effect — upon a Veteran’s claim for disability compensation.
Below is a brief overview of the VA disability compensation claim process. I have streamlined the appellate process so that the Veteran can be assured of preserving all claims, from initial adjudication through finality. It is not uncommon for disabilities to become more severe while awaiting final adjudication of a claim or for additional evidence to become available years after filing the original claim. Preservation of all issues for appeal will ensure the earliest possible effective date of award and entitle the Veteran to back pay to this date.
File Your Initial Claim
A Veteran who believes he/she has service-connected disabilities should file a claim before the local VA Regional Office (VARO). The VARO will then adjudicate the claim and issue a decision [hereinafter “Rating Decision”] granting or denying the claim. If the VARO determines that the Veteran has a service connected disability they will also assign a percentage rating for each claimed disability from zero to one hundred percent. Based upon this determination, the Veteran will receive a monthly cash benefit for the service-connected disability.
File a Notice of Disagreement
It is at this point that the Veteran can appeal the decision. The most common appellate issues are: (1) the denial of benefits for a disability the Veteran believes is service connected; or (2) a rating decision less severe than the Veteran believes the disability warrants. Pursuant to 38 C.F.R. § 20.200, the Veteran initiates the appeal by filing a written Notice of Disagreement (NOD) with the VARO. The Veteran has one year from the date of the mailing of the Rating Decision to file a NOD pursuant to 38 U.S.C. § 7105. If the Veteran does not file a NOD within one year, the Rating Decision becomes final. Similarly, if the Veteran files a NOD that only appeals one particular issue in the Rating Decision, the other issues and claims are considered unappealed and final. The NOD is a critical part of in the VA claims process, and a Veteran should consider all potential issues arising from their claim, including the effective date of award, the diagnostic code assigned to any service connected disability, the assigned rating percentage, and any informal claims that were not addressed in the initial Rating Decision.
Filing a Substantive Appeal
Once the VARO receives the NOD, they will prepare and issue a Statement of Case (SOC). The SOC more thoroughly summarizes the evidence, laws, and regulations, and provides a more detailed account of the VARO’s rationale for denying a claim. If the Veteran disagrees with the SOC, the Veteran should appeal. Within sixty (60) days, you need to file a VA Form 9 (Substantive Appeal) with the VARO. The VA Form 9 is needed to appeal to the Board of Veterans Appeals (BVA) and must be received within 60 days that the VARO mailed the SOC pursuant to 38 C.F.R. § 20.302(b), (c). The VA Form 9 is critical to preserving issues on appeal and the Veteran should again consider all potential issues arising out of their claim.
The Appellate Process at the BVA
After the Veteran files the VA Form 9, the VARO will transfer the claim to the BVA. The BVA will docket the Veteran’s claim based upon the issues appealed in the VA Form 9 (Substantive Appeal). Depending on whether the Veteran requested a personal hearing, the BVA will either hold a hearing (this can be held locally, at the BVA office in Washington, DC, or by videoconference) or issue a decision. If the claim is ultimately denied by the BVA, the Veteran may appeal the decision to the United States Court of Appeals for Veterans Claims (CAVC) by filing a Notice of Appeal. Pursuant to 38 U.S.C. § 7266, the Veteran normally has 120 days from the date the BVA mails to the decisions to file the Notice of Appeal before the CVAC.
Appeal to the Court of Appeals for Veterans Claims
The CAVC is not part of the Department of Veterans Affairs and is an independent federal court. The CAVC will issue a decision based upon the issues presented in the Notice of Appeal. If the Veteran disagrees with the CAVC decision, then further judicial appeal is possible before the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). An appeal to the Federal Circuit must be filed within 60 days of the CAVC final decision pursuant to 38 U.S.C. § 7292(c). If the Veteran disagrees with the final decision of the Federal Circuit, the Veteran may petition the U.S. Supreme Court to hear the case within 90 days of the Federal Circuits decision.
Protect Your Interests
Unfortunately, the VA disability claims process can take years to adjudicate. The process can be confusing and exhausting for a Veteran not versed in dealing with the administrative legal process.