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.