The VA denied my claim. What happens next?
Please note that this post is specific to the procedures of the original VA adjudication system, and does not relate to the new procedures under the RAMP initiative. For more information about RAMP, see our post about this.
In the VA benefits adjudication system, there are three tiers of appealing decisions. Each tier offers a higher level of review, culminating in a review by experienced law judges.
The first tier is the Regional Office (RO), which is responsible for the development of claims, initial decisions, and De Novo reviews. The individuals who make the decisions in this tier do not necessarily have legal backgrounds, but they do undergo training on how to develop and adjudicate claims. If the claimant is unsatisfied with the initial decision, he/she can file a notice of disagreement, requesting that a more experienced individual (Decision Review Officer or DRO) take another look at the case. The DRO will either grant or deny the issues from the first decision. If the claimant is still dissatisfied with the decision, he/she may appeal their case to the second tier – the Board of Veterans Appeals (BVA).
At the BVA, the case will be reviewed by attorneys on the staff of Veterans Law Judges (VLJs). The attorney will draft a decision, and the decision will be reviewed by the VLJ for accuracy, and then signed. This level of review is beneficial in cases where legal standards are in question. For example, if the RO misapplied the rules for individual unemployability (TDIU). The BVA can directly grant or deny a claim. Most often, however, they issue a remand, which requires the RO to follow certain steps toward re-evaluating the case, and rendering a new decision. If this new decision by the RO results in another denial, the case will automatically return to the Board, and will undergo the same process within the Board as before.
If the Board denies the claim, an appeal to the third tier is possible. The Court of Appeals for Veterans Claims (CAVC) is the last resort for a claimant with a benefits dispute. Like the Board, the Court is made up of experienced attorneys and judges. There are several important factors to consider in determining whether or not to appeal a case to the Court.
- The Court is a federal court, and is therefore adversarial in nature. Unlike the other tiers of the Veterans Benefits Administration, the VA argues against the claimant’s entitlement to the benefits in question. This means that an attorney is assigned to represent and defend the VA’s interests in the case against the claimant. This also means that it is highly advisable for the claimant to obtain legal representation with experience in VA law for this level.
- Strict rules of practice and conduct are required. These rules include deadlines for timely filing of the documents and briefs, and require a legal basis for the arguments on both sides. This means that the claimant (or the claimant’s representative) is required to have enough familiarity with the law to present a legal basis as to why the Board erred in denying the claim.
- The Court is limited to what they can review. The Court is only authorized to review cases that involve interpretation of the law. For example, this might include the Board misinterpreting the rules surrounding sheltered employment in TDIU cases. Cases that involve interpretation of the facts, such as whether or not the claimant’s symptoms qualify for a certain rating, are not reviewable by the Court.
- No new evidence can be filed at the Court. The Court will only review the documents that were available to the VLJ who made the decision in question.
A mediation conference is standard procedure for Court cases. If the claimant and the VA attorney are unable to come to an agreement, the case is brought before a judge, who then reviews the case and makes a final decision. In special circumstances, the case may be brought before a panel of judges for a collective decision.
In the event that the Court denies the case, the claimant’s best option is usually to file a new claim with the RO. Even though this is essentially starting the claim over, there is always the chance that the laws might change in the claimant’s favor. In particularly complex cases, it is a good idea to obtain legal representation for the best chance of success.