Most veterans are aware they can appeal their compensation and pension decisions from the VA if they disagree with an entire VA decision or even just a portion of their decision. An appeal is a veteran's disagreement with a determination by VA to deny a benefit, request for reconsideration of a determination, or direct appeal to a higher level, such as the Board of Veterans' Appeals (Board).
What many veterans don't know is that almost any VA decision, with a few exceptions, can be appealed in one way or another. This includes many decisions made by the Veterans Health Administration (VHA) as well.
Health benefit appeals are also known as medical appeals. Health benefits appeals include questions of eligibility for hospitalization, outpatient treatment, and nursing home and domiciliary care; for sensorineural aids such as eyeglasses and hearing aids; and for other benefits administered by VHA. Health benefits appeals do not include medical determinations, such as the need for and appropriateness of specific types of medical care and treatment for an individual. Refer to 38 CFR 20.101(b)
The majority of VHA appeals fall into four categories:
- Enrollment issues, including disputes as to priority group assignment and beneficiary travel,
- Claims related to non-VA unauthorized treatment, and/or
- Prosthetic-related claims involving home improvements and structural alterations (HISA), annual clothing allowance, Durable Medical Equipment (ramps, stair chairs, etc.) and other prosthetic devices including service dogs.
- Vocational, Rehabilitation and Education (VR&E or Voc Rehab) decisions.
As of the August, 2013, VHA Directive Provision (Still current in 2019), when a Veteran expresses disagreement with a VA benefit determination, the Veteran must be advised of the right to appeal the decision and the correct process for initiating the appeal. This means that the VA Medical Center handling the appeal complies with all appeal procedures, such as notice of appellate rights and issuing Statement of the Case (SOC) and duties, such as, the duty to notify and duty to assist that apply in the VBA appeals process.
There are two types of appeals stemming from a VHA decision and two different appeal paths. The first type of appeal is an administrative denial or an administrative appeal. In this type of appeal a veteran is usually appealing some type of administrative decision such as a denial of medical service because a veteran is not eligible for VA care or an appeal for reimbursement for medical care. These types of appeals also are where VA denied fee basis or Community Care (Formerly CHOICE) care, otherwise known as fee for care provided outside of the VA Medical System. These appeals pertain to VA decisions that are administrative in nature rather than medical in nature. An administrative appeal can be appealed through the VHA administrative appeal process or through the traditional appeal process. An administrative appeal, just like a compensation and pension appeal, can be heard by the Board, Court of Appeals for Veterans Claims (CAVC), Court of Appeals for the Federal Circuit (CAFC) and possibly by the United States Supreme Court (USSC). An administrative appeal provides you with greater due process protections and gives you more chances to prevail.
The second type of appeal is a clinical appeal. A clinical appeal relates to a VA medical decision such as denying a veteran a particular medication or a form of treatment. These are decisions that rely upon the professional judgment of a medical professional rather than on VA administrative policy and procedures.
Clinical appeals on the other hand can't be appealed above the local level. That is to say these types of appeals cannot be heard by the Board or any level above the Board as they lack jurisdiction over medical determinations. If you are in disagreement with a VA medical decision by the VA Healthcare System, you have the right of a written notice of the decision and a copy of your appeal rights. The VA has created a "Clinical Appeals process" for contested medical decisions. A clinical appeal must be appealed through the VHA administrative appeal process. The decision of the Clinical Appeals Process is final and there is no right to judicial review.
In order to start an administrative appeal, you use the old Notice of Disagreement (NOD) form VBA Form 21-0958. If you need to proceed on to the Veteran Law Judge you will file the new NOD Form VA Form 10182 which will take you on to the BVA (Board of Veterans Appeals).
OLD NOD Form LINK: https://www.vba.va.gov/pubs/forms/vba-21-0958-are.pdf
NEW NOD Form AS OF Feb 2019 LINK: https://www.va.gov/vaforms/va/pdf/VA10182.pdf
If you need to continue on to the full Board appeal, you will need to choose a docket type.
• If you want the Board to review your case as quickly as possible, choose Direct Review.
• If you have additional evidence for the Board to review, choose Evidence Submission.
• If you want a hearing with the Board, choose Hearing Request.
September 27, 2019 - DAH