|Matthew Hill:||Hello and welcome to another Hill and Ponton VA video blog. I’m Matthew Hill here with …|
|Carol Ponton:||Carol Ponton.|
|Matthew Hill:||And we are doing a series on what we see the biggest mistakes that veteran’s make when prosecuting their VA claim. We’ve talked about three already. The first one was not filing the claim because someone else tells you not to. Second one was not filing all the claims that encompass what’s going on with you. So again, if you have a back disability, not filing the legs that have numbness or radiculopathy second to that. The last one we talked about was why not to file reconsideration and instead filing an NOD and today we’re talking about the appeal process more and continuing the appeal.|
|Let’s say you filed that NOD and you are denied. The the regional office issues what’s called statement of the case and Carol what are your thoughts from there?|
|Carol Ponton:||The statement of the case, or we call it an SOC, says that if you disagree then you can file a VA Form 9 and go to the Board of Veterans Appeals in Washington. And I would say 75% of our clients don’t do that. They are afraid of that. They think they have to go to Washington. God, the Board of Appeals sounds scary to them and they drop their claim. That is a big mistake.|
|First of all, the rules that are applied at the regional office are not necessarily the rules that we think are the law. The Board of Veterans Appeals is a whole different area. They try to follow the court and the law that the court puts down.|
|Matthew Hill:||That’s the first time you actually have a lawyer or an actual judge who is bound by the regulations of the VA and bound by the Congress’s statutes in the court cases to actually apply those to your law. The regional office, they don’t … They look at their manual. It tells them how to do things, but that’s not necessarily the same sophistication as you find in the law.|
|Carol Ponton:||And I would say that we get wonderful decisions many times from the Board of Veterans Appeals. They will go give veterans benefits much farther back. They’ll give them much more benefits. It’s a wonderful place to be. The problem is a VA-9 is just a form. You just have to file it and you only have 60 days. That’s another problem. It’s not the year that you think that you are entitled to because the NODs give you a year.|
|Carol Ponton:||So you need to make sure you get it filed in time and you need to make sure you know where to send it. That’s another problem we have with our veterans. And on the form that you get, you will get a statement of the case and they will actually send you usually the form with it to file and tell you exactly where to send it. Okay?|
|That shouldn’t scare you. You don’t have to go to Washington. You can say that you want a hearing in a local VA office, they can do that. You want a hearing, say at the regional office or you don’t want a hearing at all. You just want the court to look at your case.|
|Matthew Hill:||The board.|
|Carol Ponton:||The board.|
|Matthew Hill:||And something that Carol and I have spoken about before is that it’s important to file that and you know, if you don’t want a hearing frankly that will be a faster avenue. But you need to think about why your case was denied. If you think it was denied just because the decision maker wasn’t paying attention, that’s one thing. But if they are telling you there’s a missing piece of evidence, meaning you had the back injury in service. You have a back diagnosis now but there’s no connection, there’s no nexus where a doctor said, “What you have now is related to then.” You are not going to win. So you need to think about what evidence you are going to put in the file to help win.|
|But what I’d say is the farther your case goes up the appeal chain, the more sophisticated of an adjudicator, of a decision maker you are going to encounter. So we always file for the DRO process in the regional office and …|
|Carol Ponton:||So when you are denied initially, you have a choice of the traditional or the Decision Review Officer.|
|Matthew Hill:||At the regional office.|
|Carol Ponton:||And you want to take the Decision Review Officer.|
|Matthew Hill:||And then if you are denied as we’re talking about here by that person, or someone else in the RO, going to the BVA entitles you to a review by a judge. And that’s the first review by a judge that you are going to get. And as we were saying, they know the law. They know the case law, the regulations and they are going to follow it. But you still have to give them the evidence that they need.|
|Carol Ponton:||Right, you have to figure out why are they denying me? Are they denying me because there’s no problem with my back? Or are they denying me because they say what’s wrong with my back is not related to the service? And then you need to go get that evidence.|
|Matthew Hill:||Right. Well that was our big mistake number four which is not appealing to the BVA. Please stay tuned to this channel for the other mistakes and all our other video blogs. Thanks so much.|
In the normal course of a veteran’s claim for disability benefits, there will come a point that a VAF 9 Substantive Appeal to the Board of Veterans (BVA) will need to be filed. This action follows on the heels of an issuance of a Statement of the Case (SOC) from the VA. Once a Statement of the Case is issued, this substantive appeal must be filed with the VA within 60 days of mailing of the SOC, or remainder of one year from mailing of the rating decision, whichever is later. Before going further, it is vital to remember that a decision a veteran should be given one type of medical treatment rather than some other is not an appealable decision, and is not appealable through the BVA. A proposal to change a benefit, i.e. to decrease a SC rating is also not an issue for appeals action.
Once a veteran files a substantive appeal, it is certified and sent to the BVA if no other development is necessary. There is certain information that must be included, listed as follows:
- If the SOC and any subsequent supplemental statements of the case (SSOC’s) addressed several issues, the substantive appeal must either
- Indicate that the appeal is being addressed as to all of those issues
- Specifically identify the issues appealed
- The substantive appeal should set out particular arguments pertaining to errors of fact or law made by the Agency of Original Jurisdiction in reaching the decisions(s) being appealed. To the extent that is reasonable, the argument should relate to specific items in the SOC and any subsequent SSOC’s. It is important to note that after an SSOC is issued, the VA must provide the veteran a 60-day period in which to file a substantive appeal, even if the one-year appeal period will expire before the 60-day period ends. Therefore, when a veteran submits additional evidence within the one-year appeal period, and that evidence requires preparation of an SSOC, the time limit to file a substantive appeal will end no sooner than 60 days after the SSOC is mailed.
The BVA will interpret such arguments in a liberal manner for the purpose of determining whether they raise issues on appeal. They will also not presume that the veteran agrees with a statement of fact contained in an SOC or SSOC which is not specifically argued, and also, they will determine the adequacy of a substantive appeal.
Once the substantive appeal has been returned, the appeal has been perfected, and the veteran is not required to take any further actions except for cooperating with any additional development determined to be necessary. The veteran will be notified when the appeal is received at the BVA and is allowed a period of up to 90 days to submit additional evidence or request a personal hearing, if that has not already been done. If the Board determines that the appeal is not ready for review, they will remand it to the Agency of Original Jurisdiction for additional development, observance of due process requirements, etc., as instructed. The Board can determine that the case requires special expertise or involves obscure legal issues and can request an independent expert medical opinion outside of the VA, or a legal opinion from the VA General Counsel. When the Board determines that the appeal is ready for review, they will proceed.
Whether the Board’s final decision grants the appeal or upholds the denial, the veteran will be advised in writing of the Board’s decision. The notice will include a listing of the issue(s) considered; findings of fact and law; a listing of the evidence considered, and the reasons and bases for the decision as to each issue. The notice will also include a notice of appeal rights for the Court of Appeals for Veterans Claims (CAVC), including instructions on where and how to file an Appeal to the Court, and the time limit for filing an appeal. A veteran can file an appeal to the CAVC within 120 days of the date of the BVA decision. The appeal must be sent directly to the court and not to the BVA or any VA agency. The time limit is strict, and will not be waived or extended. Only the veteran can appeal a BVA decision.
A substantive appeal (VA Form 9) is a formal appeal to the Board of Veteran’s Appeals (BVA). There are three things that happen when a VA Form 9 is filed. First, filing a VA Form 9, in effect, takes the claim from the RO and sends the claim to the BVA. Second, the VA is put on notice of the veteran’s arguments and basis for their appeal. Third, the VA will know if the veteran wants a personal hearing in front of the BVA, and if so, the veteran’s choice of location for the hearing.
What to Include: The VA Form 9 must contain “specific arguments relating to errors of fact or law.” This means that it is important to state the benefit the veteran is seeking, and to point out any mistakes the RO may have made in their decision. The BVA is supposed to read arguments in a way that is favorable to the veteran, but they may dismiss a claim that doesn’t raise specific errors.
Where to File: The VA Form 9 must be filed with the Regional Office (RO) that originally issued the decision the veteran is appealing. However, if the veteran has received a notice that his claims file was transferred to a different RO, the VA Form 9 should be filed with that new RO.
When to File: One of the most important things to know about filing a VA Form 9 is when it must be filed. The VA form 9 has to be filed within 60 days of the date the Statement of the Case (SOC) was mailed, or within one year from the date the RO mailed their notice of decision to the veteran, whichever occurs later. However, if a veteran can show good cause, they may be able to get an extension for when they can file their VA Form 9. Also, if the veteran submits new evidence to the RO during the appeal period and the RO then issues a Supplemental Statement of the Case (SSOC), the veteran will have a new 60 day period from the date the SSOC was issued in which to file their VA Form 9. What happens if these time requirements aren’t met? If the VA Form 9 is not timely filed, and there is no timely request for an extension, the BVA will inform the veteran that their claim will be dismissed. If the BVA notifies the veteran of this, the veteran then has 60 days from when the BVA sent the notice to argue that his appeal was, in fact, timely and met all other requirements.
Again, because filing the VA Form 9 is such an important part of the appeals process, it is crucial to pay close attention to the dates on a SOC or SSOC that the veteran receives. These dates start the 60 day time period to file the VA Form 9.
A veteran who is seeking benefits from the VA will send and receive many different documents and letters in the mail as his or her claim makes its way through the VA claim system. Today, we will discuss one very important document that a veteran may send to the VA, the Notice of Disagreement, and one very important document that a veteran may receive from the VA, the Statement of the Case.
When a claim for benefits is denied, a veteran has one year from the date of the letter notifying him or her of the denial decision to send to the VA a Notice of Disagreement (NOD). Until recently, there was no set wording or form that the NOD had to follow, and all the NOD had to do was be clear about the fact that the veteran disagreed with the decision and wanted to appeal. However, the VA now has a standardized form (that will soon be the required method to submit a NOD. If a veteran sends a letter to the VA which is no more than a complaint about a decision, the VA will likely not consider that letter a NOD, and the time limit for filing an appeal may pass and the decision will become final. Once the NOD is received by the VA, it will send a confirmation that the NOD has been received and that the appeal process has been initiated. If a veteran does not receive confirmation as to the receipt of the NOD by the VA, it is important to follow-up in order to avoid missing the one-year time limit.
After the VA receives a NOD from a veteran, it will prepare the Statement of the Case (SOC) for all issues that were not granted service connection or the maximum rating. The SOC is an explanation of the decision, including a cover letter that gives instructions about the appeal process. Also included in the SOC is a list of the issues being decided in the claim, a summary of evidence, the pertinent laws and VA regulations that relate to the claim, and the decision and reasoning behind each issue. The SOC may include helpful information in order for the veteran to prepare his or her appeal, but the most important thing to remember about the SOC is that the veteran has 60 days from the date of the SOC cover letter to send in VA Form 9, which is the substantive appeal. Failure to respond to the SOC within 60 days by filing VA Form 9 may result in the appeal being closed and the decision becoming final.
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