How to Win Your VA Disability AppealUpdated September 18, 2022 Veterans Disability
Getting the news that your VA disability claim has been denied can make you feel like there’s no hope for an approval. But that simply isn’t the case. Receiving a denial of your initial claim application simply opens the door to the appeal process.
8 Steps to Appeal a VA Disability Claim Denial
There are several specific steps you’ll need to follow throughout the appeal process for VA disability compensation. We’ve outlined them below.
- File a Notice of Disagreement
- Choose Appeal Type
- Wait for Statement of the Case
- Hire an Attorney
- Gather Evidence
- Complete the Substantive Appeal Form
- Wait for a Decision
- Request a Personal Hearing
The two most common reasons for appeal are either because the U.S. Department of Veterans Affairs has denied your VA claim outright or because it has assigned a disability rating a disabled veteran feels is erroneous. While the appeal process is notoriously long and arduous, it isn’t impossible. We’ve outlined everything you need to help make sure you can win your claim on appeal.
What Is the Appeals Modernization Act?
The Veterans Appeals Improvement and Modernization Act of 2017, officially implemented in February of 2019, intends to give veterans more voice and control over VA disability claims decisions that result in disagreement. The revamped VA appeal process seeks to more quickly provide veterans with both information and decisions regarding their claims.
This appeals modernization is a revamping of the appeals process to make it more modern and streamlined. Recognizing the cumbersome and often frustrating nature of the VA disability appeal process, the Appeals Modernization Act establishes a completely restructured process for filing and tracking the appeal of a VA claim denial. This new decision review process allows for faster decisions, improved delivery of VA benefits, and a better user experience for veterans and their families.
All communications are written in plain language, and veterans have much more control over how the process unfolds. Overall, the process is designed to be more timely and fair than the previous review process, and it also results in a more transparent experience for veterans.
The Appeals Modernization Act is a collaboration between the U.S. Department of Veterans Affairs, Congress, and Veteran Service Organizations to help meet some of the appeals-related needs identified by veterans.
Veterans Can Choose How To Appeal
With the passing of the Appeals Modernization Act, eligible veterans now have three options when it comes to choosing how they’d like their VA disability appeal to move forward.
Your first choice is to put your claim in the higher-level review lane, which entails your claim being reviewed by a more senior claims adjuster and generally results in a new claim decision within 125 days.
This process essentially is a brand new review by someone with more seniority and experience than the reviewer who rendered the rating decision on your original claim. With this type of review, you will not be allowed to submit any additional evidence or documentation, and the previous VA decision regarding your claim will only be overturned if the adjuster determines that there is a substantial difference of opinion between reviewers or there is a clear and unmistakable error in how your original claim was reviewed.
At this point, the new reviewer may send your claim back down to your regional office for correction. You and/or your Veterans Service Officer or qualified veterans disability attorney can request an informal telephone call to discuss specific issues with your claim’s review at this point.
This is a good option for you if you don’t have any new medical evidence in your possession, but you believe an error of fact or judgment was made in your initial review. If this higher-level review finds that there was a mistake in judgment in your original claim decision, it will send your claim back down to your regional office for correction.
With the second option, you can choose to submit a supplemental claim, which means that you are allowed to provide additional and/or new medical evidence or documentation that could help strengthen your claim. The VA will even offer assistance in helping you identify and locate the information you need. This is the ideal option if you have additional medical evidence that was not available when you submitted your initial claim. But note that this additional evidence must be deemed by the VA as both new and relevant to your original claim.
This is a new standard, meant to be more flexible than the VA’s previous standard of new and material evidence. New simply means that the evidence wasn’t available earlier in the process, and relevant means that it must clearly either support or refute an element of your original claim. Choosing this option allows you to present a more comprehensive snapshot of your condition, which could affect the VA’s ultimate rating decision. Those who choose this option typically receive a final decision within 125 days.
The third option allows you to appeal your claim directly to the VA’s Board of Veterans Appeals. This choice also brings with it three distinct paths. First, you can request that the BVA review your claim without providing any new evidence or choosing to convene a hearing.
This is a good route to take if you have no new, relevant information that you’d like to provide for the BVA’s consideration, and you can generally expect a decision within 365 days. Second, you can provide any new evidence that pertains to your original claim, but you forego the step of having a hearing.
If you choose this option, you will have 90 days from the filing of your Notice of Disagreement to submit any additional medical evidence that you would like the BVA to consider.
You may choose to not only submit new evidence but also to provide personal testimony before a veteran's law judge at a formal hearing. This is considered the supplemental claim lane. If you choose this option, a formal hearing will be scheduled. You can either present any new evidence or testimony during your hearing, or you can provide it in follow-up as long as it’s within 90 days of your hearing’s conclusion.
It’s important to make note of the timeline regarding evidence submission; the VA will not accept supplemental evidence if it’s submitted outside of the allowable window.
8 Steps to Appeal a VA Disability Claim Denial
Whether your claim has been outright denied or the VA has assigned your disability a rating that you believe erroneous, you do have some power in appealing your initial decision. You should also keep in mind that many, if not most, VA disability claims are denied upon first review, so you’re not alone, and you can appeal.
There is a specific process to follow, including submitting specific forms or documents, so you’ll want to review the entire process and make a plan before getting started. Let’s take a closer look at each step of the process toward winning your VA disability claim on appeal.
1. File a Notice of Disagreement
The first thing you must do is file an official appeal, using the VA-stipulated Form 21-0598, or Notice of Disagreement. This is the official signal to the VA that you believe its judgment is in error and will be entering the appeal process. You will submit this notice either to your VA regional office or to the medical facility that issued the ruling. You should note that you have up to one year to file your Notice of Disagreement.
If you have received a notice of determination about more than one VA disability claim, make sure to be clear about which one(s) you wish to appeal. You can appeal just one decision involved with all your claims – it’s not an all-or-nothing process.
At this point, you’ll likely be tempted to point out everything the VA did wrong when reaching its decision about your claim, but it’s best to show restraint when completing your Notice of Disagreement. You’ll have plenty of opportunities throughout the remainder of the process to point out errors and provide additional evidence.
The purpose of the Notice of Disagreement is simple: to preserve your right to appeal elements of your VA disability decision – if you go into too many specifics in your NOD, you may lose the right to challenge other areas of the VA’s decision that you didn’t mention in your NOD. It serves you better to remain as general as possible in this document.
What should you include in your NOD? Just the basics. The date of your denial and the VA’s decision. A statement that you disagree with the decision and plan to appeal. If you only intend to appeal a portion of the VA’s decision, you should make that clear in your NOD.
2. Choose Appeal Type
You have the option to choose the full appeal process, which involves having your case reviewed by the full VA Board of Appeals. Or, you can elect to have a Decision Review Officer evaluate your case. In situations of clear omission of error, the DRO process may be faster and more streamlined since it’s a more informal process.
The DRO holds the authority either to modify or to reverse a previous VA rating board decision. If you choose the DRO route from the beginning and still receive an unfavorable decision, you can still choose at that point to go the full VBA route. The advantage of choosing the DRO process is that you may get your ruling much more quickly, while the disadvantage is that if the DRO upholds your ruling, you’ll have to wait that much longer for a VBA review.
If you’re working with a skilled and qualified veterans disability attorney, your lawyer can help you decide which route is better at this point in the process, based on the elements of your claim and the reasons given for its denial.
3. Wait for Statement of the Case
Once the VA has reviewed your case, it will send you a Statement of the Case, which will describe any facts, laws, and regulations that were used in deciding your case. This statement also will include a VA Form 9, which represents a formal appeal to the Board of Veteran Appeals, in case you need to use it.
If you need to continue with the appeal process, you must submit this form either within 60 days of the date your Statement of the Case was mailed or within one year from the date the VA mailed its original decision, whichever comes later. In this form, you can point out the specific level of benefit you’re asking for, along with the mistakes you believe the VA has made in reviewing your claim.
4. Hire an Attorney
You are free at any point in this process, to seek counsel from a qualified and trusted VA disability lawyer. However, if you haven’t worked with a disability lawyer up to this point, now is an excellent time to seek one. The rest of the process will be complex and detail-oriented, and a VA disability lawyer can help guide you through everything you need to do from this point forward.
In particular, it’s important to note that Form 9 is a complex and lengthy document, so even if you filed your NOD alone, you may want support from a qualified VA disability lawyer to guide you through appropriately completing and submitting Form 9.
5. Gather Evidence
You may want to provide supplemental medical evidence that the original VA reviewers didn’t originally have to strengthen your case. At this point, you can begin working with your medical team to gather such documentation. Once you’ve filed your appeal with the BVA, you should receive a letter notifying you that the BVA has received it. At this point, you will have 90 days to add more medical documentation to your file, request a hearing, or select (or change) your legal representation.
6. Complete the Substantive Appeal Form
VA Form 9, also known as the Substantive Appeal Form, is complex and thorough. Its job is to make sure nothing was missed or overlooked in the decision the VA originally handed down. It is important to complete this form with as much information as you possibly can about why your VA claim should have been approved, or why you should have been assigned a different disability rating if that’s the portion of your decision you’re appealing.
7. Request a Personal Hearing
You also have the option of requesting a personal hearing, which is a meeting between you, your VA disability lawyer, and a VA official who can decide your case. During this hearing, you can provide personal testimony and appropriate medical evidence to support your claim, and you can request your hearing either with the BVA or with your VA regional office. If you choose the local route, you and your attorney will meet with a VA hearing officer from your VA regional office.
The other option means you must present your case to a member of the BVA, either at your VA regional office or at the VA headquarters in Washington, D.C. Some VA offices may even allow you to video conference with a BVA member in D.C. from your regional office. In either case, these hearings are much less formal than court hearings and will allow you to fully explain your case to a reviewer.
A judge may ask you some clarifying questions, but there’s no need to be worried about any cross-examination – that’s not part of this process. After a hearing, you’ll receive a decision either granting the compensation or VA disability rating you’ve requested, denying VA disability benefits or a requested VA disability rating, or sending the case back to your VA regional office for further information and clarification.
8. Wait for a Decision
The BVA will process appeals forms in the order in which they are received. Once your case has been decided, the results will be sent in writing to your home address. Unfortunately, you may need to wait as much as two years from the time the BVA receives your VA appeal until you receive a final decision. Complex cases may take even longer.
If you must have a ruling earlier than waiting through the traditional process, you may write the BVA and provide convincing proof of exceptional circumstances. Such circumstances may include imminent foreclosure or bankruptcy, terminal illness, or an obvious VA error that caused a significant delay in getting your decision.
If you disagree with the BVA’s final ruling, you do have the option to appeal to the U.S. Court of Veterans Appeals for Veterans Claims. In most cases, you must file a Notice of Appeal with the Court within 120 days from the date the BVA’s decision is mailed.
What To Include in Your VA Appeal
Consider carefully the reason for the denial or disagreement and target your appeal to include as much evidence as you can on that issue. If you agree with part of the VA’s decision, there’s no need to go over those issues again. Be specific about what it is you disagree with.
Think about the best kind of evidence to address the VA’s denial or concerns. For example, if the VA acknowledges your disability but disputes that it was connected to your military service, seek out a medical opinion showing the connection. Or, you may need what is called a “buddy statement” from fellow veterans who served with you who can document your experience.
If the dispute is over whether you have a disability, consider additional evidence that can be persuasive. This might include new details of your treatment since the initial application. Request the actual treatment records from your doctors, if they weren’t submitted with your original claim. Actual treatment records can provide more powerful evidence than a doctor’s summary of your condition.
If you want to challenge the rating assigned to your VA disability, we suggest that you secure your medical treatment records and copies of any doctors’ reports. If you believe the reports don’t describe your condition accurately, you can request a re-exam if it was a VA doctor. You can also be evaluated by a private doctor and use that doctor’s report as the basis for requesting a re-exam.
You may also want to consult the published Schedule for Rating Disabilities to clarify whether the VA applied the correct rating to your stated medical condition.
Always be sure to include any evidence requested by the VA. The VA recommends including as much detail as possible. For example, include the names of your doctors, the date of treatment(s), and full contact information.
You can request that your local VA office review additional evidence first. If, after reviewing the evidence, they still don’t allow your claim – you can then appeal to the Board of Appeals.
Be aware that if you want new evidence sent directly to the Board without your local VA office seeing it, you need to specify that you waive the option of having it sent first to the local office. If you don’t specify this, the new evidence may get sent back to your local office and cause further delays.
Keep in mind that the appeal process is only for addressing the decision on your recent VA disability claim. This is not the venue to introduce evidence about brand new disability claims.
FAQs About the Appeals Modernization Act
What happens if I lose my appeal?
No matter which option you choose, you still have recourse if you disagree with the decision. If, for example, you disagree with a higher-level review, you may resubmit your claim either as a supplemental claim or as an appeal to the Board of Veterans’ Appeals.
If you disagree with the decision regarding a supplemental claim, you may resubmit a second supplemental claim with additional evidence, or as a higher-level review or an appeal to the Board of Veterans Appeals. And if you disagree with a BVA decision, you may appeal to the U.S. Court of Appeals for Veterans Claims. If you’re working with a trusted and qualified VA disability lawyer, she can help guide you through the best options that position your claim for success.
You should also know that, at any time during the process, you can change which “lane” you’ve chosen for your review, especially if new medical evidence comes to light. If you already have a pending appeal within the legacy appeals process, the VA will allow you to request changing your claim over to the AMA structure.
Does my effective date change when I appeal?
No. The effective date is the official date the VA uses to determine when VA disability compensation should begin accruing. This is most often tied to the date of an initial VA disability claim, and under the AMA, a veteran can keep her original effective date, even when a decision is appealed. This has the potential to translate to additional VA disability back pay for the veteran if and when his VA disability compensation claim is approved.
How do I track my VA disability appeal?
Veterans have easy access to track the process of the appeal. To provide timely and transparent information about the status of a VA appeal, the VA has implemented an appeals status tracker. This tracking system allows a veteran to see exactly where her appeal is within the process, along with the next steps and what to expect in terms of an estimated timeline. You can get alerts for upcoming deadlines and reminders when action is needed on your part.
What’s the difference between BVA and VBA?
BVA stands for the Board of Veterans Appeals. It is commonly referred to as the Board. As part of the VA, its mission is to hold hearings and decide on appeals.
VBA stands for the Veterans Benefits Administration. It is the VA’s top-level agency in charge of benefits and programs for veterans.
How long do I have to wait for a decision from the VA?
The new system is set up to allow the VA to provide decisions to veterans more quickly, but do keep in mind that the VA is currently straddling two systems – the new approach and the legacy system.
In some cases, the VA needs to prioritize legacy appeals in order to clear out that backlog. Across the board, you can expect decisions under the AMA to come much more quickly at the regional office level. During the VA’s 2019 fiscal year, it added 605 additional appeals employees to help clear out this legacy inventory, establishing decision review operation centers in the Seattle and St. Petersburg regional offices.
However, when it comes to BVA decisions, the track you choose may affect how quickly you hear a rating decision. For example, the BVA currently prioritizes the direct docket, followed by the evidence docket, with the hearing docket coming in at third priority. You should keep this in mind as you work with your VSO or VA disability attorney to determine which path is the right one for your claim.
When VA disability claims are denied, should I just reopen the claim?
When a claim is denied, veterans often wonder if they should just reopen a new claim. It’s understandable to think this way but there are several key points to keep in mind:
First, if you reopen a claim instead of appealing it, and you are eventually given an award, it may only go back to the date you reopened the claim and not the date you filed the original claim. This could cost you valuable back pay.
Second, asking for a claim to be reopened after a denial requires a showing of “new and material” evidence. If you don’t have something new and material that you didn’t show them before, you could be out of luck.
It can be a tricky decision on how to handle a denied claim. This is the time you should consider getting experienced opinions to fully review your options. Free advice can be provided by state veteran’s affairs offices and by Veterans Service Organizations. You may also hire an attorney to advise which option is best given your particular situation.
Reopening a Claim That was Denied
When VA disability claims are denied, a veteran can typically reopen a claim with “new and material” evidence. This applies when you are addressing the same condition.
“New” evidence is information not previously considered by the VA. “Material” evidence relates to an unproven fact necessary to the claim. If the denial was based on the lack of a service connection, then witness statements or other evidence can help resolve that question. If the denial was based on your condition, then new medical evidence or opinions may help.
There is little evidence that reopening a case rather than appealing it will improve your chances of approval, or your level of award. However, each case is unique and the distinctions can be highly confusing. You can often request a free consultation with an experienced attorney to help you understand the options.
When to Hire a VA Disability Lawyer
Most veterans use representatives to help make their case on appeal. The decision to hire a VA disability lawyer is entirely up to you. You can work with a qualified disability attorney from the very beginning, which may strengthen your case and up your chances of being approved earlier in the process. Or, you may wait until you receive notification about the VA’s first decision regarding your VA claim.
There’s no one right point at which you should engage with legal counsel. You can also choose to represent yourself throughout your VA appeal, but most applicants who appeal their decisions choose to work with legal counsel. You can also choose to be represented by a Veterans Service Officer.
Anyone helping a veteran with an appeal must be accredited by the VA. You can receive assistance from various Veterans’ Service Organizations, like the American Legion and the Disabled American Veterans, and many have staff inside local VA offices. Or choose to be represented by a VA-approved attorney who is experienced and knowledgeable on VA disability matters.
File a VA Disability Appeal
The appeals process can take years, unfortunately, so consider any advantage you can take to speed along your claim. Seeking help from a VA-approved disability attorney can help you present your case as clearly and strongly as possible to improve your chances of collecting your disability benefits.
If you’ve received a notice letting you know that the VA has denied your initial claim, don’t give up. It’s always worth it to try the appeal process. If you follow some of the tips here, you may find yourself winning your VA claim fairly early in the appeal process.