How to File a VA Disability Claim and More
Veterans seeking benefits from the VA often find themselves jumping through hoops trying to receive a favorable decision granting service connection for a disabling condition. Often, they may even have to go further into the process to seek a higher rating that matches their level of injury or disability.
The VA Claims process can be tedious and frustrating to veterans and their family members or survivors, so it’s important to understand the intricacies of the VA process, or even to seek help from a legal representative who can guide them through how to file a VA Disability claim.
To learn more about the VA Disability claims process, just click the button below to read about each stage in filing for VA Disability and what it may mean for you.
The first step in the VA process is for the veteran, veteran’s survivor/dependent, or veteran’s representative to submit a claim to a VA Regional Office. The Veteran can find the claim applications at the Regional Office or on line at va.gov.
Once a claim has been submitted, the claimant will be assigned a Veterans Service Representative (VSR). The VSR is the primary contact for the veteran/claimant. They will determine if more evidence is needed for a claim, and assist the veteran/claimant in obtaining that evidence. Once the VSR feels that the claim has sufficient evidence and is ready for a decision, they will send the claim to the Ratings Veterans Service Representative along with their recommendation.
In addition to formal claims submitted by claimants, informal claims can also come about in the VA process. An informal claim is any written communication or action indicating intent to file a claim for benefits. This can originate from the veteran himself, veteran’s survivor, veteran’s representative, or even a Congressman or Senator. In some cases, examination or treatment at a VA or other uniformed services medical facility may constitute an informal claim.
In order to constitute an informal claim, the communication or action must identify which benefit is being sought. Once an informal claim has been received by the VA, the agency is required to supply the claimant with a formal application. The claimant has one year from the date the VA provided the application in which to file the formal application.
The VA has made new rules, that become effective in March 2015, that eliminates the informal claim. Although any informal claim file prior to this date will still be recognized, all claims must be on the claim provided by the VA. The VA has also created an “intent to file a claim” form which allows a claimant to submit this form and follow up with supporting evidence to complete the claim.
The “intent to file a claim” form will set the effective date on the date of the form, and the claimant has one year to complete the claim. This will allow the claimant the earliest possible effective date without having to wait for all of the supporting documentation.
The VA claims process is intended to be non-adversarial and beneficial to the veteran. In order to show service connection for a condition, the veteran only has to show that it is at least likely as not that the condition in question was caused or aggravated by his military service.
The VA must always look to the veteran’s Service Medical Records (SMR’s), and help find and supply them to the veteran or claimant. In addition, other service records, including flight records, ship logs, and awards, can be looked to for evidence. For example, a veteran with a Combat Action Badge can use that badge as evidence of having been in combat with the enemy. Often, veterans rely on “Buddy Statements” from fellow soldiers. Buddy Statements are written statements by a veteran’s fellow soldiers who served with them and can provide an explanation of in-service occurrences.
For a claim for a service connected condition or aggravation of a condition, the veteran will need evidence (generally medical evidence) showing the nexus between the condition and military service or aggravation of the condition by service. The VA has an affirmative duty to assist (see next tab) the veteran in developing claims, which may include a medical examination for the claim. This will be done in the form of a Compensation & Pension Examination (“C&P”). A C&P will be ordered by the Regional Office where the claim is being evaluated, and may come with special instructions to the examiner as to what kind of information the VA is seeking.
In addition, veterans or other claimants can submit medical opinions from private doctors outside of the VA. These are known as Independent Medical Examinations (IME). IME’s and C&P’s provide the bulk of evidence in many claims.
Under the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a statutory duty to assist veterans in the preparation of their claims. Once a claim for a VA benefit has been submitted, the VA must make “reasonable efforts” to help the claimant gather all of the information necessary to adequately support the claim. The VCAA also places a duty on the VA to inform the claimant at each step of the process of what the VA will do and what the claimant must do to develop evidence sufficient for the claim. The VA will send a “VCAA letter” to the veteran/claimant asking if the veteran has further evidence to submit, or if they have submitted all of the evidence they desire. Once the VA has determined that the claim is fully developed, it will proceed to decide the merits of the claim.
The Triage Team: The Triage Team is the first line of analysis a claim encounters at the RO. Personnel on the Triage Team review incoming claims and other mail, creates new claims folders, and initiates transfer of claims folders to the appropriate department when necessary. The Triage Team also works on “fast action claims” which are claims which may require expedited consideration due to a veteran’s age or terminal illness.
The Pre-Determination Team: After the initial filing and organization of claims, the Triage Team hands them off to the Pre-Determination Team. As indicated by the title, this team is still focused on “preliminary” matters such as determining whether the claimant is eligible to claim benefits and whether a veteran had a discharge other than dishonorable.
The Pre-Determination Team also acts as an intermediary between and source of information for claimants and examiners; they help claimants develop the evidence needed for their claims, and advise examiners on the proper medical and legal standards governing their examinations.
The Rating Team: The Rating Team’s function is self-evident: they weigh the evidence of each claim and the applicable law, and make a decision on whether to grant or deny the claim. The Rating Team considers all factors which come into play in a Rating Decision – whether a condition is service connected, aggravated by service, or is secondary to a service connected condition, Total Disability claims, issues of competency, levels of disability, and entitlement to additional compensation.
If the Rating Team determines that the record for a claim is not developed fully enough, they will send it back to the Pre-Determination Team for additional evidence gathering.
The Post-Determination Team: After the Rating Team decides the merits of a claim, the Post-Determination Team is responsible for processing that decision and notifying the veteran or claimant. This Team will prepare a notification letter to send to the veteran with the Rating Decision, and ensure that the veteran is aware of and is given all due process and appellate rights.
The Post Determination Team is also responsible for decisions which don’t require rating a disability – such as competency, apportionment, and accrued benefits decisions.
The Appeals Team: The Appeals Team handles appeals and remands. When a claim is denied and appealed, the Appeals Team issues the Statement of the Case (SOC), and may issue a Supplemental Statement of the Case (SSOC) as needed. For claims which go through the Decision Review Officer process (DRO), the Appeals Team will coordinate with the claimant and the DRO.
The Public Contact Team: This team is responsible for communications between the RO and the public.
Most decisions about veterans’ benefits from the VA can be appealed. Several aspects of a rating by the VA can be appealed, including service connection for a condition, degree of disability, and effective date of an award.
Notice of Disagreement: The initial step for a veteran or claimant who wishes to appeal an adverse decision by the RO is to file a Notice of Disagreement (NOD). This step is mandatory, yet easy to fulfill. The VA has created new ruled, starting in March 2015, that requires the VA form be used to appeal a decision. This form is only required where the VA has created a form. Currently, only compensation and pension claims have a NOD form. This form is the VA Form 21-0958.
For all other appeals, no specific form is required, the veteran or claimant must simply submit a written communication expressing disagreement with a decision by the RO, and a desire to appeal it. The NOD must be specific as to what part(s) of the decision the claimant disagrees with. If a NOD is not specific, the RO is required to notify the claimant that the NOD was not sufficient and request clarification.
Decision Review Officer Process: Before appealing to the Board of Veterans Appeals, appellants can opt for the Decision Review Officer process at the RO. In the DRO process, a Decision Review Officer at the RO which decided the claim conducts a completely new review of the claim and the evidence surrounding it, without considering what the RO already decided (this is called a “de novo” review). The veteran or claimant seeking a DRO review of their denied claim has a couple opportunities to request the DRO process. They can request a DRO review in the NOD. If the RO receives an NOD which doesn’t request a DRO, they will send a letter acknowledging the NOD and explaining the next steps and options, including notifying them of their right to a DRO review. The claimant then must opt for a DRO review within 60 days.
After fully reconsidering the claim, the DRO will issue a new decision. The DRO may seek additional evidence he deems necessary, or may have an informal conference or personal hearing with the claimant in order to fully develop the record.
The DRO can overturn prior decisions which went against the claimant; however, he may not overturn a favorable part of a decision unless he determines that clear and unmistakable error (CUE) is present in the decision.
In some cases, a second DRO review can be requested. If the first DRO of a claim, or a subsequent BVA or RO decision, decides an issue favorably (such as service connection for a condition), the claimant can later request a second DRO review of another issue in the claim (such as effective date). The same issue can’t be reviewed by a DRO twice, and if a claim undergoes a second DRO for a separate issue, a different Decision Review Officer must be assigned.
Statement of the Case: Once the DRO has made a decision, the VA will prepare and issue a Statement of the Case.
If the veteran does not choose the DRO, the RO will review the Rating Decision and issue a Statement of the Case (SOC). Most of the time, the SOC will reaffirm the Rating Decision. The SOC will explain to the veteran or claimant which laws and regulations apply to their claim, and explain the legal and medical justification for the decision made by the RO. The SOC will also explain the disability rating level assigned, and explain why the next highest rating was not assigned.
Substantive Appeal (Form 9): After the veteran receives the SOC, they must submit a Substantive Appeal on VA Form 9 if they wish to appeal to the Board of Veterans Appeals. The veteran has 60 days from the mailing of the SOC, or the remainder of 1 year from the RO decision (whichever is later) to file a Form 9 appeal with the RO which issued the Rating Decision. The VA Form 9 is mandatory with the new rules effective March 2015. It is important for veterans or their representatives to file a Form 9 quickly, as the docket number for the appeal at the BVA is assigned to appeals in the order of Form 9 receipt. If the Form 9 is not filed timely, the RO decision will become final.
Functionally, the Form 9 appeal transfers jurisdiction over the claim from the RO to the BVA, and allows the appellant to select which kind of BVA hearing they would like. The Form 9 appeal serves to give notice to the BVA of the appellant’s reasons for appeal.
Supplemental Statement of the Case: A Supplemental Statement of the Case (SSOC) is issued if the RO receives new evidence after the SOC is issued, but before the case is sent to the BVA. The issuance of the SSOC allows the veteran another chance to respond to the reasoning behind the RO’s decision in the appeal. An appellant has 30 days to respond to a SSOC.
Certification of Issues on Appeal: After an appellant submits a timely Form 9 appeal and after any further development of the case (such as a DRO hearing), the RO certifies the case to the BVA. This serves to transfer jurisdiction and the physical claims file to the BVA.
Traditional Appeals Process – Board of Veterans Appeals: If a claimant does not want to go through a DRO, they may choose to directly appeal the decision to the Board of Veterans Appeals (BVA). In this case, the VA will issue a SOC without the DRO review, and the substantive appeal will appeal to the BVA.
Hearings Before the BVA: Hearings before the BVA are available in Washington, D.C; before a “Travel Board” member-where a Veterans Law Judge travels to the local RO; or via videoconference in a local RO before a Veterans Law Judge sitting in Washington, D.C. The VA favors teleconference hearings, which are easier to schedule since they typically do not require traveling long distances. The VA will not reimburse the veteran for any travel expenses or other expenses associated with a BVA hearing, but will provide the necessary time, location, and equipment for the hearing.
The BVA considers hearings on a “trailing docket” basis. As many as three hearings are scheduled for each time slot. The hearings are held on a “first come, first serve” basis – the appeals are held in the order which the veterans and/or veterans’ representatives appears at the RO (or other location) and signs in.
Submitting Evidence to the BVA: Additional evidence can be submitted at the BVA level. Veterans have 90 days or until a decision is made, whichever is first, to submit additional evidence to the BVA after the claim is certified to the BVA. The VA will notify the veteran when the claim is transferred to the BVA. If the veteran has relevant evidence to submit after the 90 days, he/she must request, in writing, for permission to submit that evidence. Good cause must be shown to submit this additional evidence. The regulation gives examples of good cause which include, but are not limited to, illness of the appellant which prevented action during this time; withdrawal of a representative; discovery of evidence that was not available prior to the expiration of the period.
Prior to February 2013, when additional evidence was submitted, the Regional Office, as the agency of original jurisdiction, had the obligation to review the new evidence. Now, any evidence submitted to the BVA in support of an appeal is fist reviewed by the BVA. Should the veteran desire, he/she must request that the Regional Office review evidence submitted to the BVA.
BVA Decision: The BVA conducts a de novo review of the case, and can consider any additional evidence submitted. No deference is given to the previous RO decision.
Typically the record of the claim is “closed” on the day of the BVA hearing, and the Veterans Law Judge then makes a decision based on the record before him/her and the arguments put forth at the hearing. Extensions may be granted to keep the record open in order for the appellant to submit additional evidence before the Judge makes his decision.
The BVA is bound by law to consider claims in the order in which the Form 9 appeals are received and assigned a Docket Number. However, the Veterans Law Judge has discretion to expedite a claim based on a veteran’s age, health, or other considerations. The veteran or representative can make this motion at the hearing or in other communication with the Judge prior to the hearing.
The BVA can affirm the RO’s decision, grant the appellant’s claim and modify/reverse the RO decision, or remand the case back to the RO. The BVA is required to notify the appellant of their appeal rights in each final decision issued.
Remand: A remanded case will be sent to either the Appeals Management Center (AMC) or back to the original RO. The AMC handles the majority of BVA remands, with the remainder being handled by ROs. A remand is done in order to further develop a claim before the BVA can issue a decision. For example, the Board may feel that the medical evidence before it is inadequate, and order a C&P exam.
After the additional steps are taken to fulfill the remand order, the AMC or RO determines if the benefit sought on appeal can be granted. If they determine that it can’t, a SSOC is issued and the case goes back up to the BVA.
U.S. Court of Appeals for Veterans Claims: Final decisions by the BVA can be appealed to the U.S. Court of Appeals for Veterans Claims (CAVC), which is a federal Court of Appeals dedicated to considering veterans claims. A BVA denial must be appealed to the CAVC by submitting a Notice of Appeal with the Court within 120 days. At this stage, no new evidence can be submitted.
On the Notice of Appeal, the appellant is required to provide his name, telephone number, and VA claim number, and must identify the BVA decision being appealed and express the intent to seek CAVC review of the decision. If the veteran has a representative, the NOA must be accompanied by a Notice of Appearance and its attachments.
Only someone who is “adversely affected” by a BVA decision can seek review of the appeal by the CAVC. This means that the VA cannot appeal a BVA decision to the CAVC, but a veteran can appeal if the BVA decision granted less than 100% of benefits sought. In addition, the CAVC cannot grant the veteran less benefit than what has already been granted.
The CAVC cannot address findings of fact of the BVA that are favorable to the veteran.
The Court of Appeals for the Federal Circuit: The Federal Circuit has exclusive jurisdiction to hear appeals of final decisions from the CAVC. Unlike the BVA and CAVC, the VA in addition to the veteran/claimant can appeal final CAVC decisions to the Federal Circuit. Those wishing to appeal a final CAVC decision to the Federal Circuit must do so within 60 days of the final CAVC decision.
The Federal Circuit has a more limited scope of review than the CAVC and the BVA. The Federal Circuit cannot review findings of fact made by the BVA and reviewed by the CAVC, except where the appeal presents a constitutional issue. Generally, the Federal Circuit must accept BVA and CAVC findings of fact.
The Federal Circuit is primarily concerned with the proper interpretation and implementation of statutes and regulations governing veterans’ benefits, as well as judicially created rules of law (created by the CAVC).
The Bluestein Attorneys SC Veterans’ Advocates Team is Here to Help
The VA Disability process often operates as a “hurry up and wait” system — there are important deadlines that injured or disabled veterans, or survivors, should be sure to meet so as not to delay their claim or miss out on their chance to appeal. However, the VA generally makes slow progress through the backlog of claims.
Patience and procedural vigilance are necessary for individuals filing for VA Disability claims. This makes it essential to contact a legal representative with experience working within the VA Disability system, so they can advocate on your behalf and ensure all important deadlines are met and essential evidence is presented.
While the information provided here in intended to be a general overview of the claims process at the VA, our SC Veterans’ Advocates Team can help you more fully to understand the intricacies of the VA Disability claims process.
Request your free VA Disability consultation by phone at (803) 779-7599 at contact us online by filling out the form.