Understanding the VA Appeals and Hearing Process

Veteran meeting with attorney to discuss the VA appeals process.

Veterans benefits provide critical support for America’s fighting men and women who return from service. They include health care, monthly disability payments, special loans, and other forms of assistance. But the VA does not always make the right call on veterans’ applications for benefits. Claimants do have options, up to and including a hearing before the VA, but the VA appeals process can be difficult and time-consuming.

Disability Law Group understands the frustration of receiving an unfavorable decision from the VA. We also know the steps it takes to successfully appeal your decision and bring the matter to a hearing if necessary. When your benefits are on the line, turn to us for skilled and dedicated legal representation.

Why Appeal a VA Decision?

Some veterans who successfully complete the claims process are satisfied with the results they receive but may want to consult with an attorney to ensure they are receiving the proper rating(s) with the appropriate effective date. At the same time, many veterans are assigned a disability rating that they believe is inaccurate. The amount of monthly benefits that a veteran receives depends upon that rating, which can be anywhere from 0% to 100%. If you received a Rating Decision or other decision from the VA that you believe may amount to an inadequate rating, or your request was completely denied, you should consider appealing the decision.

The VA appeals process does not necessarily include a hearing; it is optional, and a skilled attorney certified to handle cases before the Department of Veterans Affairs can advise as to whether a hearing is appropriate in your case. A hearing does have the advantage of allowing you to present your case directly to a Veterans Law Judge with the ability to present your theory, submit a brief in support, and any additional evidence depending on the case. On the other hand, it could delay your appeal.

Because the VA appeals process was recently modified, there are two different tracks for veterans to follow depending on when they received the unfavorable claims decision. The determining date is February 19, 2019.

For Decisions Received Prior to February 19, 2019

To begin the VA appeals process, the applicant who received a Rating Decision files a Notice of Disagreement (NOD). The NOD is used to dispute a claim denial or a decision for less compensation than you feel you are entitled to. You have one year from the date of the unfavorable decision to file the NOD. You can supply new evidence in favor of your claim along with your NOD. There are strict rules concerning the NOD and what to include with it. Failure to follow these rules could delay your appeal or jeopardize your claim. Depending on the facts of your case and what evidence may be required, it may be advisable to request an informal hearing before the DRO conducted at your Regional Office.

Once the NOD is filed, a Decision Review Officer (DRO) is assigned to your appeal. The DRO reviews the evidence that supports your appeal. If there is not enough evidence to grant your appeal, you will receive a document called a Statement of the Case that explains the DRO’s findings. 

Along with the Statement of the Case, the VA will send you a VA Form 9. This is used to contest the Statement of the Case and pursue your matter to the Board of Veterans’ Appeals (BVA). To do so, you must return the VA Form 9 within 60 days outlining the reasons why you disagree with the previous decision. The Form 9 allows claimants to indicate whether they would like to request a hearing before BVA which could be in person at the Washington D.C. courthouse or by video teleconference at the claimant’s Regional Office (we will describe more about this process below). 

The date on your VA Form 9, once submitted, will determine the order in which your matter is reviewed by the BVA. You can expedite the process under certain conditions; for example, if you suffer from a serious or terminal illness, advanced age, or are facing significant hardship such as homelessness. You will want to be sure to submit the proof required to request an expected hearing process or decision, and follow-up on this request. A compassionate VA disability attorney, compassionate about veteran’s rights, can assist you with the appeal, hardship request if applicable, and follow-up on your claim(s). 

For Decisions Received On Or After February 19, 2019

The main difference with these cases is that veterans have the option of how to appeal or which appeal lane to choose for decisions dated after February 19, 2019. If you try one option and are not satisfied with the result, you may be eligible to try another depending on the facts of your case. Your options are:

Supplemental Claim. You may add new supporting evidence by filing a Supplemental Claim. This evidence must be in addition to what you provided initially pr prior to the date of the most recent decision. When you choose this route, a reviewer examines the evidence and determines if it changes the outcome; a new decision will be issued once all evidence is reviewed.

Higher-level review. In this step, a senior reviewer will examine the same evidence you previously submitted and determine whether an error was made or another decision may be reached. No new evidence is submitted with this option nor may any new evidence be considered that was not previously submitted. This process can allow for an informal phone hearing where you, or your attorney, can explain any error of fact or law that should be considered before the reviewer renders the new decision.

Appeal to a Veterans Law Judge at the BVA. This is similar to the traditional process, except you can appeal your case directly to the judge and forego the other options. You can add new evidence, and request either an in-person or video conference hearing before a judge.

How Does a Hearing Work?

Whichever steps you take to get there, the hearing will be the same. Although the hearing is informal, you will be under oath and will be asked questions about your service and injuries. You may have an attorney represent you, but you are not on trial. 

The goal of your testimony is to explain directly to the Veterans Law Judge why you appealed your decision and why you are entitled to more compensation. Your attorney may also ask you questions to elicit additional testimony and prepare a brief or memorandum outlining the theory for service-connection and why your claim should be granted on appeal. You can submit additional evidence such as medical records or letters from doctors to support your appeal. Hearings usually last about 30 minutes and are transcribed then added to your electronic file.

Depending on the case, you can add evidence within 90 days after your hearing unless you received a 90-day letter from the BVA (to submit any new evidence prior to your hearing), after which your case is placed on a docket for a decision by a judge. You can waive this 90-day window if you don’t have any additional evidence; you can also request additional time by submitting a request in writing with the rationale for review by the BVA Judge. 

If you receive an unfavorable decision by the judge, you can appeal to the U.S. Court of Appeals for Veterans Claims. As with every other step in the VA appeals and hearing processes, there are deadlines and strict requirements that must be followed.

Let Disability Law Group Fight for the Benefits You Deserve

The appeals and hearing processes are complex, and each option comes with advantages and disadvantages. An experienced veterans benefits attorney can fully explain your legal rights and advocate for your interests – whether requiring a hearing or not. A VA Disability Attorney can work with your doctor to ensure all evidence required is obtained and submitted timely. Don’t risk losing the benefits to which you are entitled. Call Disability Law Group today to schedule your consultation and speak with an attorney today. Disability is all we do and to us, every client matters.