When your veteran applies for a VA benefit, you can anticipate a long wait. Then the benefit will probably be denied. If you expect this and prepare for it, things will be easier for you.
Understanding the appeals process is vital to your long term success. You must understand the types of appeals available, the time limits that you have to appeal in and when you will need a lawyer.
VA denies about 70% of all applications for benefits. Most of these denials are mistakes by VA and once appealed, the benefit is awarded.
Whether you are assisting your veteran with an application for benefits or if you are applying for your own benefit as a survivor of a veteran, you should anticipate that you will have to appeal at least once.
Receiving a letter of denial is such a routine part of the VA claims process that you should plan for it from the beginning.
The appeal process has time restrictions built in. In broad terms, you have one year from the date of a denial to appeal. You should never wait more than a few days to file the appeal. You knew it was coming and you’ve planned for it so you can promptly file an appeal.
To appeal requires that you write a Notice of Disagreement letter. This is usually called the NOD letter. There is no form to be completed. You must fill it out on your own. There is a sample template in our Letter Templates page.
Points To Remember
- Appeals are “timely”. Don’t delay.
- Use certified mail, RRR for all correspondence.
- You will have to appeal. Start now to prepare.
The letter must be kept simple and it must be mailed to the VA Regional Office that issued the denial letter.
You will usually ask for a review of the claim by a Decision Review Officer. This is known as a DRO Process appeal. The DRO is a senior person in the VA Regional Office who was not involved with the original decision. This person has the authority to agree with the original decision, to modify the original decision in part or to issue an entirely new decision.
In the letter, you may include your reasons for your disagreement. State your case clearly. Keep it brief and without emotion.
Include any evidence you may have. Note that the appeal letter doesn’t go into great detail. That can come later. There is no anger expressed. This is a business letter and it’s counterproductive to believe that you should tell them all that’s on your mind.
You will soon receive a notice that your appeal is in process. Now you have to decide to DIY retain a lawyer to represent you.
Steps in Filing for Appeal
- Veteran files a claim per the usual way.
- The usual process occurs; C & P exam, letters from VA, etc. This may take 12 to 24 months.
- The veteran receives the letter from VA that denies the benefit.
- The veteran then chooses how to appeal. There is a one year time limit.
- The veteran may then retain a lawyer, tell VA that a DRO Process appeal is desired or seek a BVA (Board of Veterans Appeals) appeal.
- If DRO (Decision Review Officer) Process is the path, the appeal is handled at the Regional Office.
- If BVA is desired, the claim will be “perfected” by the RO prior to being sent to BVA. This may equal DRO Process.
- If BVA claim is denied, the veteran may proceed to the CAVC.
- We does not recommend reconsideration.
- We recommends that almost all appeals be handed over to an expert attorney.
When VA sends you a denial, the claim has been adjudicated by a Ratings Veterans Service Representative (RVSR). The RVSR is at the top of the food chain at that level of decision makers. The claim was perfected (prepared for the RVSR) by a Veterans Service Representative (VSR).
To request reconsideration sends your folder right back to them. Unless you have *new* evidence that hasn’t been reviewed previously and is *material* to the claim and *not repetitive*, the reconsideration will very likely give you the same denial for the same reasons.
The next level up the chain of command is the Decision Review Officer Process (DRO). The DRO is a more senior person who (at least in theory) is better trained and more experienced than the RVSR. The DRO Process assures you of a de novo review. The DRO is not allowed to be a person who has had any dealings with your claim earlier so you have a fresh perspective. The DRO has authority to agree with the original decision, modify a part or parts of the earlier decision or throw out the earlier decision for something completely new and different.
We have had great luck with the DRO Process. It is believed that the DRO is often the first person who will actually read the claim folder front to back. I do not trust that the RVSR does that since that person is on a production quota with a bonus tied to volumes of claims completed.
We recommend that most denied veterans retain an attorney, even for the relatively simple DRO Process appeal. This is a change in my thinking. Prior to 2007 veterans couldn’t hire a lawyer to represent them to a DRO Process appeal. Now that the laws changed and there are lawyers with plenty of skill and experience, I’m finding it to be an advantage to just proceed right to a good lawyer rather than messing around with what can be a very complex and unfriendly process.
This depends on the veteran. If the vet feels good about arguing his own appeal, then he or she should dive right in. If the veteran has any doubts, it’s time to talk with a lawyer.