Proving your Claim

 Unlike other benefit systems, like workers’ compensation or Social Security, the VA benefits system allows a Vet or his or her family to submit a “plausible claim.”  Once the applicant meets that requirement, the law requires the Department of Veterans Affairs to gather evidence to support the claim.

 The claim must be in writing, and submitted to a Regional Office.  Each state has at least one Regional Office. The link for the Portland, Oregon Regional Office is http://www1.va.gov/directory/guide/facility.asp?ID=317.

 After the Regional Office gathers evidence, and develops the “record” in your claim, then it issues an initial decision.  This decision, in writing, only tells the applicant whether benefits have been denied or granted.  It is called a “Notice of Action.”

Notice of Disagreement, The First Appeal

 If you are denied, then you must file a “Notice of Disagreement” to the VA Regional Office.  There is no form to fill out, but the notice must be in writing.  When the Regional Office receives the Notice of Disagreement, it must prepare a “Statement of the Case.”

What is the “Statement of the Case?”

 This is basically an explanation of the denial.  The VA Regional Office must tell the applicant why it is denying the case. The Statement of the Case should also tell the applicant what rules and statutes were relied upon in making the decision.  Also included is an explanation of appeal rights.  To appeal, the applicant must file a VA Form 9.  This form will be included with the Statement of the Case.

The Second Appeal:  The Board of Veteran’s Appeals

 After receiving the Statement of the Case, you then must file the VA Form No. 9.  This form must be filed within 60 days of receiving the Statement of the Case, or one year from receiving the Notice of Action from the Regional Office, which ever is later.

 After filing the VA Form No. 9, the file then goes to the Board of Veteran’s Appeals in Washington, D.C., also called the “BVA.”  This is the last appeal level before going to an actual court.  You are still in the VA administration at this point.

 The BVA can do four things.  It can affirm the VA Regional Office decision, which means it agrees with the VA Regional Office denial.  The Veteran can then appeal this decision to the Court.

 The BVA could reverse the Regional Office decision, and grant benefits to the Vet.  This is a favorable decision, and there is no need to appeal to the Court.

 As a third option, the BVA could “remand” the case back to the Regional Office.  This remand means that the case is sent back to the Regional Office for “further proceedings.”  This could be in order to gather more evidence, or review evidence with certain rules in mind.  How long the case takes on remand depends on what needs to be done.  Once the remand is completed, the VA Regional Office then issues another decision called a “Supplemental Statement of the Case.”  The file then goes back to the BVA, and it can follow any one of the four options as if this were the first appeal.

 The final BVA option is a “referral.”  The BVA refers a case back to the agency when if feels that an issue or clam which should have been developed was no, and the BVA tells the Regional Office to decide the new issue, and provide the veteran notice of the decision.  In this case, the veteran must file another Notice of Disagreement with any action the Regional Office takes on the referral.

The Third Appeal:  US Court of Appeals for Veterans Claims

 If the BVA affirms a denial of the claim from the Regional Office, the veteran then can seek federal court review.  The veteran must file a Notice of Appeal within 120 days from the date of the adverse BVA decision. 

Reconsideration, Another Appeal Avenue

The VA regulations allow a veteran to ask the BVA for “Motion for Reconsideration” of any prior decision denying benefits.  If a veteran asks the BVA for reconsideration within 120 days of an adverse decision, this acts to “toll” the time to file the matter in the US Court of Appeals for Veterans Claims.  “Tolling” simply means the running of the time is suspended, or put into a “time out” mode.  Once the BVA rules on a Motion for Reconsideration, then the 120 day clock starts again, and the veteran must file in the US Court of Appeal for Veterans Claims within 120 days of the Order on Motion for Reconsideration.

Although a veteran can file a Motion for Reconsideration at any time, if the 120 days from the date of the BVA decision has passed, there is no tolling, or suspension of the time limit to file the appeal in the US Court of Appeals for Veterans Claims.  If you receive a decision from the Board of Veterans Appeals, it is a good idea to consult with a VA disability lawyer or representative as soon as possible to know your rights.