The road to a BVA decision begins with the filing of a VA Form 9, also known as a substantive appeal. Next, the RO must certify the appeal to BVA. Then the BVA will issue a decision.
Filing a Substantive Appeal
A substantive appeal, otherwise known as a VA Form 9, is filed after a Statement of the Case (SOC) is issued. The VA Form 9 must be filed within 60 days of the date the SOC was issued. When a veteran has multiple claims on appeal their VA Form 9 should either indicate that they wish to appeal all of the issues, or indicate each issue separately. Sometimes the BVA will dismiss an appeal, or a part of an appeal, for inadequacy of the VA Form 9 submitted by the veteran. According to VA regulations, the claimant has the burden to identify with specificity the claims on appeal when they file their VA Form 9. However, before the BVA can actually dismiss an issue on appeal they must notify the veteran and the veteran’s representative of its intention to dismiss. The BVA does this by sending the veteran, and the veteran’s representative, a letter that (1) summarizes the history of the case; (2) recite the VA regulation that requires the VA Form 9 be specific; (3) state that the BVA is proposing to dismiss the issue for failure to submit a specific substantive appeal; and (4) advises the veteran and their representative that they have 60 days to respond with a written argument or to request a hearing to present oral argument.
Certification of the Appeal
The RO certifies an appeal by completing a VA Form 8. The purpose of the VA Form 8 is to identify the claims that are on appeal. The RO prepares the VA Form 8 just before the transfer of the veteran’s C-file to the BVA. The VA Form 8 is a purely administrative form used by the VA to signal that an appeal is ready to be sent to the BVA.
Reaching a Decision
Once the BVA receives the veterans appeal and file, they will look at the issues on appeal and then make a decision. This decision must include (1) a written statement of its findings and conclusions; and (2) the reasons or bases for those findings and conclusions. There are two rules that have been established in regards to what the BVA must consider. One rule says that the BVA is required to address all possible legal theories that would service connect a disability or death benefit claim as long as the theory is reasonably raised by the evidence in the record. The second rule says that if there is evidence that of unemployability on the record, the BVA must address the issue of entitlement to a 100% rating due to individual unemployability regardless of whether or not the veteran specifically raised this issue.
The BVA will decide a claim without regard to the RO’s earlier decision. This is called de novo review. Additionally, a veteran with an appeal at the BVA may submit evidence that was not previously part of the record. However, any new evidence must be submitted within 90 days of the date on the letter sent notifying the veteran that their appeal had been sent to the BVA (this letter is known as the “90 Day Letter”). Even if the RO correctly denied a claim based on the evidence they had at the time, the BVA may grant that same claim if new evidence has been submitted since the RO’s decision. Also, a veteran may raise new arguments that were not previously raised at the RO level. Note that a veteran is not required to demonstrate that the RO’s decision was wrong. What if the RO decided some issues in the veterans favor, but other issues against the veteran? In this situation, if the RO’s decision is appealed to the BVA, any favorable finding can be re-decided by the BVA. This is because the BVA has the full right to re-decide on its own whether it agrees with ANY finding made at the RO level, even findings that were favorable to the veteran.
A BVA decision will grant, deny, or remand each claim that it looks at on appeal. A remanded claim will go back to the Appeals Management Center (AMC) or the RO for further development, and then the RO will complete any steps the BVA told them to in the remand. A BVA decision becomes final once it is signed by the Veterans Law Judge and mailed by the BVA’s Dispatch Branch. Once the decision is finalized, the veteran’s C-file and the BVA’s decision are returned to the Dispatch Branch for final processing. A copy of the BVA decision is sent to the veteran, the veteran’s representative, and any other designated parties.