I DISAGREE With My VA Claim Decision

-A A +A

i-disagree-w-claim-decision.png

 

How to file an appeal

This is a very general explanation of the new appeals process.  Keep in mind that these guidelines may change as the process continues, and feedback is received.  

AMA Process

Appeals Modernization began on February 19, 2019.  Veterans who receive decisions on or after this date will be in the new appeals system and will need to use the new standard claim forms described below.

If the Veteran received a decision letter on or after February 19, 2019, the instructions outlining their rights to seek a new decision through one of the three adjudication lanes will be included with the letter on the new VA Form 0998.

For Supplemental Claims, use VA Form 20-0995.  This form may be faxed or mailed to the centralized mail contacts that you have already been using.

For Higher Level Review, use VA Form 20-0996.  This form may be faxed or mailed to the centralized mail contacts that you have already been using.

For NODs, (Notice of Disagreement) use new VA Form 10182.  VA suggests that you use the fax number provided in the instructions on the form, which goes directly to the Board of Veterans Appeals. You may also use the centralized mail contacts that you have already been using. We highly suggest that if faxing the form, you check your fax settings to ensure a confirmation is printed with the date and time of submittal. If mailing the form, use certified mail with return receipt.

The forms are available here:

VA Form 20-0995 INFORMATION AND INSTRUCTIONS FOR COMPLETING DECISION REVIEW REQUEST:  VA Form 20-0995 SUPPLEMENTAL CLAIM

VA Form 20-0996  INFORMATION AND INSTRUCTIONS FOR COMPLETING DECISION REVIEW REQUEST:   VA Form 20-0996 HIGHER-LEVEL REVIEW

VA Form 10182 DECISION REVIEW REQUEST:  BOARD APPEAL (NOTICE OF DISAGREEMENT) VA Form 10182 Notice of Disagreement (NOD)

VA Form 20-0998 YOUR RIGHTS TO SEEK FURTHER REVIEW OF OUR DECISION  VA Form 20-0998 Your Rights

Common Questions and Answers

What if I received a decision in the last year, am I in the old or new system?

Claimants who received decisions in the last year and have not made a decision on whether to file an appeal, reconsideration, etc. can file a NOD in the legacy system using VA Form 21-0958 or can file a supplemental claim in the modernized system using VA Form 20-0995. Reconsiderations filed within the last year will be decided, but as of February 19, 2019, you can no longer request a reconsideration at the Regional Office.   You will need to submit a supplemental claim.

Claimants who received a rating decision within the last year cannot access the new higher-level review lane or new dockets at the Board of Veterans Appeals, because they did not receive a decision that meets all the notification requirements of the new law.   Once the claimant receives a Statement of Case (SOC) Letter that explains the options of the new system, they can choose the higher level review or new dockets at the Board of Veterans Appeals.

Can I select a different lane for each issue?

The claimant may select a different lane for each claim “issue” on appeal.   So, service connection for a knee condition may go through the supplemental claims lane while service connection for tinnitus can simultaneously go through the higher level review lane.

HOWEVER, “downstream issues” must all go through the same adjudication lane.   For example, if a Veteran was granted service connection for migraines, but disagrees with both the effective date and the rating assigned, both the effective date and rating must both go through the same lane.    The effective date cannot go through higher level review while the rating goes through a supplemental claim: one lane would have to be chosen, and then if one or more of the issues is denied, a different lane can be selected.

I selected a lane, but now I think I should have chosen a different lane. How can I switch lanes?

Switching lanes is limited.   To protect the Veteran’s effective date of benefits, withdrawing a NOD to select a supplemental claim or higher level review is only permitted within one year of the decision on appeal.

For example, if a claim was denied on October 21, 2018, the Veteran would have until October 20, 2019, to submit either a supplemental claim, request for higher level review, or NOD.   If the Veteran filed a NOD on February 20, 2019, but then decided to submit a supplemental claim instead, the Veteran has until October 20, 2019, to withdraw the NOD and submit a supplemental claim form with new and relevant evidence.   If done after October 20, 2019, the Veteran will lose out on the effective date. This is NOT recommended.

I selected to go to the Board of Veterans Appeals, but now I want to switch dockets. How do I do that?

To switch dockets, the Veteran must submit a new NOD form (VA Form 10182) clarifying their election.

A Veteran cannot move to the direct docket from the evidence or hearing lanes.  The Veteran can move from the direct docket to the evidence or hearing lanes if he or she decides that submittal of additional evidence or a hearing would be beneficial to their appeal.

The time limit to switch dockets (and submit additional evidence, if selecting the evidence only lane) is 90 days from the date the Board received the NOD form.

What are the deadlines for the submission of additional evidence?

If you selected a supplemental claim, you can submit the evidence at any time before a decision is made.

If you selected the evidence only lane at the Board of Veterans Appeals, you have 90 days after submitting the NOD to submit the additional evidence.

If you selected the hearing lane at the Board of Veterans Appeals, you should wait until the hearing date to submit the evidence.   If evidence is submitted prior to the hearing, it will not be considered unless it is re-submitted at the hearing or within 90 days thereafter.

If you selected a higher level review or direct docket at the Board of Veterans Appeals unless they are within the one year time period after the decision they are appealing, they have to wait for a decision to be made.  If the decision is unfavorable, they can submit a supplemental claim at that time.

What happens if I submit additional evidence outside the timelines?

The new evidence will be added to the claims file, but it will not be considered in VA’s decision. The decision will state that additional evidence was received but not considered.  If the Veteran’s claim was granted, there is no harm.  If the Veteran’s claim was denied, they will want to submit a supplemental claim so that evidence can then be considered.

When should I opt-in to the modernized appeal system?

If a Veteran already has filed a NOD, and wants to continue their appeal, the modernized appeal system will likely be quicker for them than waiting in the legacy system.  After receiving a Statement of the Case or Supplemental Statement of the Case continuing to deny their appeal, the Veteran must complete and sign the new standard form electing their new preferred lane, formally withdrawing their legacy appeal.   The majority of VSOs are not authorized to sign this on behalf of the Veteran, as it is a withdrawal of an appeal in order to participate in the new system.

·         If there is no new evidence to submit, it would probably be most beneficial to choose the new NOD process with a direct review at the Board of Veterans Appeals.  You could also select higher level review, but if a higher level adjudicator has just issued an SOC or SSOC, they will be unlikely to come to a different conclusion.

·         If there is new evidence to submit, it will likely be most beneficial to choose the supplemental claims lane.   VA has a goal of processing these claims in 125 days. If the supplemental claim is denied, you can then select higher level review or NOD to continue the appeal. Since the new evidence has already been submitted, there is no need to re-submit it.

Why can’t I submit new evidence with a higher level review or direct docket NOD?

If a claim is denied at first, but granted on the exact same evidence under a higher level review or direct docket NOD, the issue was most likely the adjudicator not considering the law properly.  

If you think the claim will continue to be denied without new evidence, then a supplemental claim should first be submitted.  If still denied, the Veteran can select higher level review or NOD.

Why am I not being contacted by VA to schedule higher level review informal conferences?

Higher level review informal conferences take place between VA and the Veteran and/or Veteran’s representative.  When completing the RAMP opt-in form, many Veterans indicated they wanted VA to contact their local/county VSO and did not include contact information for their representative.  VA will contact whoever is listed on the form, so be sure to include the contact information for the person you want to conduct the informal conference on Form 20-0996.

How do I expedite an appeal in the new system?

The rules for expediting an appeal based on age, hardship or administrative delay are the same in the new system as in the old system, whether the appeal is at the Regional Office or the Board of Veterans Appeals.  This means that if the Veteran chooses to go straight to the Board of Veterans Appeals by filing a NOD, they may be able to receive an expedited review even if they want to submit additional evidence or request a hearing.  However, the criteria for expediting a claim is still limited to those claimants who are terminally ill, homeless/facing financial hardship, or of advanced age (75 years old for the Board, 85 years old for the Regional Office).

How will I track the progress of an appeal in the new system?

Accredited representative:

·         For appeals at the Board of Veterans Appeals, cases under the modernized appeal system will be tracked using a new IT system called Caseflow.   Legacy appeals will still be tracked in VACOLS.

·         For supplemental claims and requests for higher level review, claims can be tracked in VBMS.

The Veteran can track appeals on the VA.GOV Website

Your accredited representative (VSO, CVSO, NSO, Claims Agent or Attorney) can access VBMS.

Where will the claims be decided? Will they be distributed through National Work Queue?

Supplemental claims will be decided at each Veteran’s service center and distributed through the National Work Queue.  Higher level reviews (HLR) will only take place at the Seattle and St. Petersburg Regional Office.   The Appeals Management Office (AMO) in Washington, D.C. will be handling mostly remands from the Board of Veterans Appeals but may take on higher level reviews at a future date if necessary.

What about legacy appeals? What is happening to them?

Legacy appeals will continue in the old system.   If you, for example, have been waiting for a DRO hearing in the old system and want to continue in the legacy system so you can receive that hearing, you will still have to file a VA Form 9, if the appeal is not granted, to continue the appeal.

FORM 9s and 646s

Form 9s and 646s will continue to be required for appeals in the “legacy” system.   They will NOT be required for appeals filed in the modernized system.   Appeals filed in the modernized system will still require arguments to be made as to why the decision was wrong, but they will need to be filed along with the supplemental claim, a request for higher level review, or NOD.

Motions for revision based on Clear and Unmistakable Error (CUE)

Motions to revise a previous decision on the basis of CUE are still allowed, but because a higher level of proof is needed to succeed, it’s recommended that you use one of the other options if you are still within a year of a decision, or have an appeal already on file.

No more Reconsiderations

As of February 19, 2019, you cannot request reconsideration.  Your options will be supplemental claim, higher level review, or NOD.    Already existing reconsiderations will be processed.

VA FORM 21-526b Supplemental Claim is no longer valid

VA Form 21-526b is no longer active as of February 14, 2019.  Instead, use VA Form 21-526EZ or VA Form 21-0995, as appropriate.  The old form must be discontinued as of this date because its title was supplemental claims form.   There would be much confusion with the new appeals system if it remained in effect.

Hearings

It is anticipated that by April 1, 2019, all Board of Veterans Appeals hearings will be scheduled by the Board instead of by the local appeals team. The local appeals team/hearing coordinators will still have access to the hearing schedule.

DAH 1/23/2019

voting: 
0
No votes yet