Overview of the VA Claims Process
CLAIMANT'S
BURDEN
The United
States Congress created a totally and completely unique veterans'
benefits system. Under the veterans' benefits system a veteran, a
veteran's dependents or a veteran's survivors are required only to
submit a "plausible claim" for an entitlement to VA benefits.
Once a plausible claim has been submitted, the burden to fully and
completely develop evidence to support that claim is by federal law
upon the Department of Veterans Affairs.
ENTITLEMENT
TO A DECISION
A claim must be in writing.
A claim may be submitted at any one of 58 Regional Offices of the
Department of Veterans Affairs. Every state in the United States has
at least one Regional Office. There are also Regional Offices in Puerto
Rico and the Philippines. There is also an office in Washington, D.C.
for those individuals who live outside of the United States.
Once a claim has been submitted
to a Regional Office, the Regional Office is required to render a decision.
The decision should only be made after a fully and sympathetically developed
consideration of the evidence. The veteran will receive a written notice
of the decision of the Regional Office. This notification of action
will only inform the veteran that the claim has been granted or denied.
NOTICE
OF DISAGREEMENT REQUIREMENT
In the event that a veteran
desires to appeal the denial of benefits, a Notice of Disagreement
is required to be submitted by the veteran to the Regional Office.
There is no required form for a Notice of Disagreement. The Notice
of Disagreement must simply express disagreement with the denial of
benefits. Upon receipt of a Notice of Disagreement the Regional Office
must prepare a Statement of the Case.
STATEMENT
OF THE CASE
A Statement
of the Case is required by law to explain to the veteran the reason
for the denial of benefits. The Statement of Case should also provide
notice to the veteran of the pertinent or controlling statutes and/or
regulations relied upon by the Agency to support the decision to deny
benefits. The Statement of the Case will inform the veteran that in
order to perfect an appeal of a denial of benefits, the veteran must
execute and submit a VA Form 9. This Form will be included in the mailing
from the Regional Office with the Statement of the Case.
In order
to perfect an appeal for review of a denial of benefits by a Regional
Office, the veteran must not only file a Notice of Disagreement, but
must timely file a VA Form 9. This is a two-step appeal process; completing
the first step and omitting the second step will not result in a perfected
appeal. The VA Form 9 must be filed either within 60 days of the receipt
of the Statement of the Case, or within one year of the Notice of Action
by the Regional Office denying the claim, whichever is later.
ACTIONS
BY THE BOARD OF VETERANS APPEALS
Once a veteran has perfected
an appeal, the claims folder is transferred to the Board of Veterans'
Appeals in Washington, D.C. The BVA is the final administrative process
before going to Court. The Board may take anyone of four different
actions in a veteran's appeal. The Board may affirm the decision of
the Regional Office. This would be an adverse decision to the veteran
and would allow the veteran to appeal to the Court. The Board may
reverse a decision of the Regional Office and grant the benefits sought
by the veteran. In this circumstance, the decision would be favorable
and there would be no basis for an appeal to Court. The third option
is for the Board to remand the case for further development to the
Agency of Original Jurisdiction, the Regional Office. A remand is
not an adverse decision. A remand merely continues the administrative
appeal by returning a case to the Agency for further proceedings.
Once the Regional Office
receives a remand, the Regional Office is required to complete the
instructions or directions for further development provided by the
Board. The length of time this process takes is dependent on the nature
of the remand instructions. In the event that the Regional Office
confirms the prior denial, the Regional Office will issue a Supplemental
Statement of the Case. Following the receipt of a Supplemental Statement
of the Case, the veteran's claims folder should be returned to the
Board to complete appellate review. Upon return to the Board, the
Board still has all four options available as though this was an original
appeal.
The final
option for the Board is what is called a referral. A case is referred
back to the Agency when the Board feels that an issue or a claim which
should have been developed was not, and the Board directs the Regional
Office to decide that issue and give the veteran notice of that decision.
In this circumstance, the veteran is required to file a Notice of Disagreement
with such ratings action. Another circumstance in which a referral would
be appropriate is when the Board failed to include in the Statement
of Case a claim or issue raised by the veteran in the Notice of Disagreement.
In such a situation, a referral back to the Agency of Original Jurisdiction
would be issued directing the Regional Office to issue a Statement of
the Case on the omitted claim or issue.
JUDICIAL
REVIEW
A veteran
has 120 days from the date stamped on the adverse BVA decision to file
a Notice of Appeal with the United States Court of Appeals for Veterans
Claims. A Notice of Appeal which is filed after 120 days will be accepted
by the Court but will be ultimately challenged by the VA's General Counsel,
and in all likelihood the appeal will be dismissed due to the untimely
filing of the Notice of Appeal.
RECONSIDERATION
OF THE BOARD OF VETERANS' APPEALS DECISION
VA regulations provide that
a veteran at anytime may ask or seek Reconsideration by the Board
of Veterans' Appeals of any prior adverse decision. In the context
of a current decision, if the veteran files a Motion for Reconsideration
within 120 days of the adverse decision, then the time for filing
a Notice of Appeal to Court has been tolled. Tolled means it is stopped
or suspended. The time for filing a Notice of Appeal when a Motion
for Reconsideration has been filed within 120 days of an adverse Board
decision suspends the time for filing a Notice of Appeal in Court
until the Board has acted on the Motion for Reconsideration. Upon
receipt of the decision on the Motion for Reconsideration, the date
file-stamped on the Board's letter denying the Motion restarts the
120 day time period. This means a veteran has 120 days after a decision
denying a Motion for Reconsideration to file an appeal with the Court.
Although
there is no time limit for filing a Motion for Reconsideration, any
Motion for Reconsideration filed after 120 days, while it will be accepted
and decided by the Board, DOES NOT toll the time for filing a Notice
of Appeal. This is a common mistake and misunderstanding which many
pro se veterans make. The BVA's Notice of Appellate Rights is somewhat
confusing and misleading in this regard. A veteran should consult with
a competent veterans law practitioner after receiving any decision from
the Board of Veterans' Appeals.
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