So, a veteran has decided he/she wants to file a claim for disability benefits with the VA. The first step in the process is to actually file the claim. To file an initial claim, the veteran will need to submit a VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits). This form is the original application form that provides the VA with enough information about a veteran’s military service for them to go and find military records. It is extremely important that this form be completed accurately, but with no great detail. Anything left open to interpretation by the VA can be misinterpreted and delay the claim.
Now that the VA Form 21-526EZ has been filed, the next step is for the VA Regional Office to send the veteran a VCAA Notice (Veterans Claim Assistance Act). The VCAA Notice is basically a 30 day initial development window that is enacted when a claim is first filed. As was discussed in a previous blog, the 30 day deadline in the VCAA notice is a soft deadline in that evidence can be submitted up until the time a decision is rendered in a claim. The bottom line is, though, the VCAA Notice is just the VA letting the veteran know they are working on his/her claim.
At this point in the claims process, the VA will mail notice of its decision, typically in the form of a Rating Decision. The decision lists the evidence used, the decision based on the evidence and the reasons for it. If benefits are granted, the letter provides the monthly payment amount and the effective date. However, if benefits are not granted, and the veteran feels the decision was in error or the percentage evaluation or effective date is wrong, he/she may appeal the decision.
Appealing a Rating Decision involves filing a VA Form 21-0958 Notice of Disagreement (NOD) with the VA. The NOD must be filed within 1 year of the date the Rating Decision was issued. If a veteran doesn’t follow the instructions and meet the time limit, he/she can lose the right to appeal. As of March 24, 2015, a veteran is required to use the standard VA Form 21-0958 to file an appeal. At this juncture, a veteran can opt for a DRO (Decision Review Officer) review of the decision, as an interim step. A DRO review must be requested within 60 days of the VA offering it.
After getting the NOD (Notice of Disagreement) from the veteran, the VA will issue an SOC (Statement of the Case). The SOC will include a list of the issues the VA Regional Office considered, a discussion of the evidence the VA Regional Office relied upon, as well as an explanation of how the VA Regional Office applied the law to the facts of the case. If the VARO considers additional evidence after it issued an SOC, the VARO will consider that evidence and make a new determination on the veteran’s claim, and an SSOC (Supplemental Statement of the Case) will be issued explaining the new decision with the new evidence included. It is not unusual for a veteran to wait on average 200 days for the VA to issue an SOC.
After the VARO issues the SOC, an appeal must be filed to the BVA at a minimum of 60 days from the date of the SOC or the SSOC. The form used to file a Substantive Appeal is a VA Form 9. This form is used to request a review by the BVA, and must be filed within 60 days of the mailing of the SOC or the remainder of one year of the mailing of the rating decision, whichever is later. It is very important to fill out the Form 9 correctly and completely. Veterans have the option of seeking legal assistance at this point, and all advocates have to meet VA requirements.
After a VA Form 9 is filed, the claim will eventually be sent to the BVA. Upon receipt of the substantive appeal, the Board will send a 90-day letter asking for additional evidence. Just as the name suggests, a veteran has 90 days to respond to the request for more evidence. If nothing new is submitted to the Board, they will proceed on the record without any additional evidence and render a decision. The 90 day deadline seems arbitrary, as it is now taking more than two years for the BVA to make a decision. It is, however, very important to observe this time limit. A veteran, at this point, also has the option to ask for a hearing with a member of the Board, either in person, or by video conference.
If a veteran’s appeal fails at the BVA level, he/she can appeal to the CAVC (Court of Appeals for Veterans Claims). The CAVC is a special court created for veterans and is not part of the VA at all. It is a completely separate entity that is part of the federal court system. A veteran has 120 days from the time the BVA mails the final decision to file an appeal with CAVC.