If you have been diagnosed with a medical or mental health condition that is related in some way to your military service, you may be eligible for benefits from the U.S. Department of Veterans Affairs (VA). While the process to initially file for benefits is designed to be easy, it can often result in unfavorable decisions. If your claim is denied or you are unsatisfied with your disability rating, you may be able to file an appeal.
Under the Appeals Modernization Act (AMA) passed in 2019, there are three options for appealing a VA determination: a supplemental claim, a higher-level review, or a Board Appeal. Known as decision reviews, these types of appeals can take a year or longer to complete. An experienced New Jersey veterans appeals lawyer can help you with the process, including gathering additional evidence to support your claim.
Based in Cherry Hill, Bross & Frankel fights for the rights of disabled veterans throughout New Jersey, Pennsylvania, and Delaware and nationwide. We offer free claim reviews and handle all VA cases on a contingency fee basis. Reach out to our law offices today to learn more about how we can help you.
Appealing a VA Determination
When you file a claim for veterans’ disability benefits, the VA will issue an approval or denial. This document is known as a Rating Decision. The VA will either deny your claim finding any issue is not service-connected, or will issue an approval together with a disability rating.
A disability rating is expressed as a percentage, from 0 to 100%, based on the VA’s impairment rating chart. Your disability rating will impact the level of benefits that you receive. For this reason, it is incredibly important to get a disability rating that truly reflects your level of disability.
When a veteran receives a rating decision, they may be disappointed in their disability rating – or that their claim for benefits has been denied entirely. In this situation, you may appeal a denial or the disability rating itself. You can do so in a number of different ways, including by submitting additional evidence to prove that you have a service-connected medical or mental health condition.
Appeals for VA Decisions Issued Before February 19, 2019
In 2017, the Veterans Appeals Improvement and Modernization Act became law. Commonly referred to as the Appeals Modernization Act (AMA), this law created three options for filing a decision review with the Department of Veterans Affairs. However, this law only applies to appeals filed on or after the effective date of February 19, 2019. All appeals before this date are referred to as legacy appeals.
The legacy appeals process started with filing a Notice of Disagreement (NOD) (VA Form 21-0958) within 1 year of the date of the initial decision. Importantly, this VA form is no longer in use and cannot be filed with the VA. In other words, any new VA decision review request must be filed using the new appeals process.
Once the NOD was filed, the following steps would occur:
- The VA would send a Statement of the Case (SOC) if they believed that there wasn’t enough evidence to grant the appeal fully.
- A veteran could return VA Form 9 to a VA regional office within 60 days to continue their appeal.
- The VA prepares a Supplemental Statement of the Case (SSOC) if you submit new evidence to support your appeal.
- The appeal is sent to the Board of Veterans’ Appeals, where a Veterans’ Law Judge will evaluate it.
- A veteran may request that their appeal be advanced on the docket or to have a hearing.
- The Appeal Board will make and issue a decision.
The legacy appeal process was more convoluted than the current process. However, even if you have a legacy claim, depending on when certain steps took place, you may be able to opt into the current system. Specifically, if the VA sent you a SOC dated on or after February 19, 2019, you can either continue with the legacy appeal or opt into one of the new decision review options by filing the new appeal (Supplemental Claim or Higher Level Review) within 60 days of the notice of a Statement of the Case. Otherwise, you must continue with the legacy process.
If your appeal is covered by the legacy system, a New Jersey veterans disability appeals lawyer can help you figure out what you can do. The legacy system cases do take priority, but the process can be more complex than the more streamlined current process.
Appeals for VA Decisions Issued On or After February 19, 2019
For any VA decision dated on or after the effective date of the AMA, you will need to follow the decision review process. There are 3 decision review options:
- Supplemental claim, which is used when you have additional evidence to support your initial application for benefits.
- Higher-level review with a more senior reviewer, which is an option if you don’t have more relevant evidence to submit, but believe that the initial review had legal errors.
- A Board Appeal, which may include a direct review based on evidence already submitted, evidence submission if you have additional evidence or a hearing with a Veterans’ Law Judge. You must select which type of review you want.
You have one year from the date of your Rating Decision to request a supplemental claim, a higher-level review, or a Board Appeal. Depending on your circumstances, one type of appeal may make more sense than another. A New Jersey Veterans disability appeals attorney can help you make a decision about what is best for you based on the specific facts of your case.
No matter which option you choose, be prepared to wait for a decision. The Department of Veterans Affairs processes cases in the order in which they are received. There is also a significant backlog of appeals.
While you may only wait a few months to get a decision on your initial claim, a decision review takes an average of 12 to 18 months. However, if you request a Board Appeal, it may take longer – up to 2 years if you ask for a hearing.
It can also take time to put together a comprehensive decision review. Your attorney may need to gather additional medical evidence from VA medical centers and private providers and/or arrange for a private medical examination to demonstrate that your medical or mental health condition is service-connected. They will typically write a legal memorandum, which will be used to demonstrate the legal reasons why your claim should be approved or your disability rating should be increased.
Special attention needs to be paid to Supplemental Claim appeals and Board appeals in the evidence lane. A Supplemental Claim must contain or identify new and relevant evidence related to a part of the claim that was negatively decided. But, in both cases that evidence must be provided at the time of the appeal. The record does not remain open until a decision is made, so all of the development has to be done prior to filing the appeal. This can mean more of that one-year timeline needs to be used to develop the case before an appeal can be filed.
What Happens If I Don’t File a Decision Review Within 1 Year?
If you don’t request a higher-level review or a Board Appeal of your VA rating decision within a year, then you can still file a supplemental claim. However, you may lose your effective date – the date that your benefits will begin for purposes of back pay awards – if you don’t file an appeal within the 1-year deadline. You can check your VA decision letter for specific deadlines for filing an appeal.
What Happens If I Disagree with a VA Decision Review?
If you requested a decision review and received an unfavorable result, you can request another review. The options for another review will depend on what appeal you initially filed:
- If you requested a supplemental claim, you can file another supplement claim, a higher-level review, or a board appeal.
- If you sought a higher-level review, you can request a supplemental claim or board appeal. You cannot request a Higher Level Review of a Higher Level Review.
- If you filed a board appeal, you can request a supplement claim or appeal the decision to the U.S. Court of Appeals for Veterans Claims. You cannot request a Higher Level Review of a Board Decision.
Whichever lane you choose an appeal, and your right to retroactive benefits will persist as long as you continuously pursue your claim by continuing to file a valid appeal within one year of any prior decision.
If you are considering filing a second-level decision review, you will need the help of an experienced New Jersey VA disability benefits lawyer. Reach out to Bross & Frankel to schedule a free initial consultation.
How Our Law Firm Can Help
Applying for VA benefits can be confusing. There are lots of forms to fill out, and lots of complicated bureaucracy. If you have an unfavorable decision from the VA, we are here for you.
If you have been diagnosed with a service-connected disability, Bross & Frankel can help. Our legal team advocates for people with disabilities, including veterans, to help them get the benefits that they are entitled to under the law.. To learn more or to schedule a free claim review with a veterans disability attorney, contact our office today at (866) 708-2163 or fill out our online contact form.