Appealing the Denial of Veterans Benefits from the Veterans Administration

Last Updated On: 2/5/2018 4:12:39 PM

Where Can I Obtain Assistance With My Appeal?

You don’t have to do an appeal alone. You can get help from national and state Veterans Service Organizations, or agents that are recognized by the Veterans Administration (VA), or attorneys.

You can find more information about obtaining a representative, including a list of VA authorized representatives,  on the Directory of Veterans Service Organizations.

What can I appeal?

You can appeal any or all issues in a decision by a local VA office or VA medical center.

What is the general overview of the VA appeals process?

Here’s a quick summary. Each of these steps is discussed in more detail later.

  1. Application. Filed at local VA Office, and Initial Decision;
  2. Notice of Disagreement. If the local office denies your application, you start the appeal process by filing a “Notice of Decision” with the local VA Office. The office then prepares a “Statement of the Case;”
  3. Board of Veterans Appeals. After the local office does the “Statement of the Case,” your appeal is transferred to Board of Veterans Appeals for hearing and/or decision;
  4. Court of Appeals for Veterans Claims. If the Board of Veterans Appeals denies your claim, you can appeal to US Court of Appeals for Veterans Claims.

What is Involved in the Application step?

To apply for benefits, you must file a claim with your local VA office or medical facility. This can be done on paper (using VA form 526, 526b, or 526ez) or electronically through eBenefits.

The local VA office will make a decision on your claim and mail it to you.

What’s Involved in the “Notice of Disagreement” step?

If you disagree with all or part of the decision, you file a Notice of Disagreement (NOD). You must do this within one year from the date of the letter that denied your claim. A Notice of Disagreement is filed on VA Form 21-0958. In general, the Notice of Disagreement is filed with your local office, but follow the instructions included with the letter denying your claim.

What Does the Local Office Do After I File a Notice of Disagreement?

Once you file a Notice of Disagreement, your local VA office will review your file again. The local office then will prepare a written explanation of why your claim was denied. This is called the Statement of the Case (SOC). The local office will mail you a copy of the Statement of the Case.

While this is being done, you have the right to submit addition evidence to the local office. You can also ask the local office obtain specific items of additional evidence for you. If the local office receives additional evidence, the local office must issue a Supplemental Statement of the Case which includes the new evidence.

What Happens After the “Statement of the Case” Is Issued?

If you disagree with the Statement of the Case the local office prepared, you must file a Substantive Appeal. The Substantive Appeal is filed on VA Form 9.

This is also the time when you choose whether you want a hearing before a Veteran’s Law Judge. You can choose to have your case decided:

  • With no hearing at all (no hearing will be scheduled unless you ask for one); or
  • With a hearing held by videoconference with a Veteran’s Law Judge in Washington, DC; or
  • With an in-person hearing held in Washington, DC ; or
  • With an in-person hearing held at the local VA office.

Each one of these choices will affect the time it takes the VA to process your case. We have more information about hearings at the end of this article.

You must file your Substantive Appeal either (a) within 60 days from the date of the letter sending you the Statement of the Case, OR (b) within one year from the local office’s original denial of your claim, whichever gives you more time.

Follow the instructions included with your Statement of the Case, about where to file your Substantive Appeal form.

What Happens After I File the “Substantive Appeal” form?

The local VA office then will transfer your file to the Board of Veterans Appeals. The Board will assign your case to a Veterans Law Judge. If you ask for a hearing, one will be held. After reviewing and considering every piece of evidence in your file, a Veterans Law Judge will make a decision on each issue of your appeal. Then the decision will be issued, and a copy will be mailed to you.

In general, there are three things the decision can do:

  • Grant your claim. If an issue is granted, you will receive a decision from your local VA office implementing the decision by the Board of Veterans’ Appeals.
  • “Remand” your claim. “Remand” means that one or more issues in your appeal are sent back to a local VA office to get further evidence or take other steps. Your Appeal will eventually be sent back to the Board of Veterans’ Appeals when the local VA office completes the Board’s remand instructions. A remand occurs most often when the Board of Veterans’ Appeals finds that it does not have enough information about an issue to make a decision. For example, the Board may want additional medical records, or to have a new VA examination done.
  • Deny your claim.

If My Claim Is Denied By the Veterans Law Judge, What Choices Do I Have Left?

If your claim is denied and you want to pursue further action, you have several choices:

  • Start over, by filing a new claim with your local VA office; or
  • File a motion asking the Board of Veterans’ Appeals to review your appeal because there was a clear and unmistakable (obvious) error in its decision (there is no time limit to file this motion); or
  • File a motion asking the Board of Veterans’ Appeals to “reconsider” your appeal (there is no time limit to file this motion); and/or
  • File a Notice of Appeal with the United States Court of Appeals for Veterans Claims.

If you want to appeal, you must file a written Notice of Appeal. You must file the appeal within 120 days from the date of the decision by the Board of Veterans’ Appeals.

Send your Notice of Appeal to the Clerk of the Court of Appeals for Veterans Claims.

Tell Me More About the Hearings

A hearing is your opportunity to give testimony and evidence to the Veterans Law Judge who will decide your case. The VA will not schedule a hearing unless you ask for one. You can choose not to have a hearing process, but it’s usually not a good idea. Skipping the hearing will probably speed up your case, but it means the VA will have less information. Think carefully and talk to an advocate who handles cases regularly before you decide not to ask for a hearing.

If you do request a hearing, there are three ways it can be held:

  • You can ask that the Veterans Law Judge come to your local VA office to hold the hearing. This will probably take longer than the other options.
  • You can say that you’re willing to go to Washington DC to have your hearing there.
  • You can ask for a videoconference hearing. You will be in the local VA office on video; the Veterans Law Judge will be in Washington DC on video; and you will have a live connection to talk and answer questions and give testimony. This is probably the quickest way to have a hearing.

What Should I Expect At a Hearing With a Veterans Law Judge?

  • Hearings are informal. While the Veterans Law Judge may ask some clarifying questions, he or she will not cross-examine you.
  • You will testify under oath. Before beginning the hearing, the Veteran’s Law Judge will ask you to swear or affirm that you will tell the truth in your testimony.
  • You will offer testimony. If you have a lawyer or other representative, he or she will usually ask you questions relevant to your appeal. If not, you should tell the Veterans Law Judge why the decision to deny your benefits is wrong. If possible, point specifically to sentences or facts in the denial decision that are mistaken.
  • You may submit more evidence. If you want, you may bring and submit more evidence for your appeal to the hearing. The new evidence will be considered by the Veterans Law Judge, and placed in your file.
  • The Veteran’s Law Judge will not make an immediate decision while you’re at the hearing. After the hearing is over, a typed transcript of the hearing and all testimony is created. This will be added to your file. The written transcript will be reviewed by the Veteran’s Law Judge together with all other evidence in deciding your appeal.

How Do I Check the Status of My Appeal While It’s Pending?

It depends on what stage of the process your claim is in.

  • If your case is still in the local VA office, call (800) 827-1000 to check the status of your appeal. You may also be able to check the status of your claim or appeal on eBenefits. This will work up until you receive a letter stating that your appeal has been transferred to the Board of Veterans’ Appeals.
  • If your case has been sent from the local office to the Board of Veterans Appeals, you can call (202) 632-4623 to check the status of your appeal. You can do this any time after you receive a letter stating that your appeal has been transferred to the Board of Veterans’ Appeals.

How Long Can the Whole Appeals Process Take?

Unfortunately, the appeals process can be a long and frustrating wait. According to a fiscal year 2012 report from VA’s Board of Veterans’ Appeals, the average claim takes about 900 days (almost three YEARS!) from the time an appeal is filed to when a decision is reached. That’s not from the date the application was filed; it’s from the time that the first appeal was filed with the Notice of Disagreement. The process can take even more time if you have to appeal from the Board of Veterans Appeals decision to the U.S. Court of Appeals for Veterans Claims.

This is general legal information. For guidance about your situation, talk to a lawyer.