Filing an Appeal

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If you do NOT agree with your claim's decision, you may file an appeal. Just like Filing a claim you may use the assistance of a VSO, lawyer, or an accredited claims agent.

There are three different methods to appeal:

  1. Higher-Level Review;

  2. Supplemental Claim; or

  3. Board of Veteran Appeals (BVA).

If your appeal is denied again you CAN try another eligible option (see applicable notes).

IMPORTANT NOTES:

  • If you want to keep your Effective date (your back pay) you MUST file an appeal within one year of your claim's decision date! Veterans who fail to do that can only get their original effective date and back pay if there is a Clear and Unmistakable Error (CUE).

  • Lawyers and claims agents CANNOT charge more than 33.3%* (excluding expenses**) of the Veteran's back pay. Further, they can only get paid if/when the Veteran wins their appeal. Again, VSOs are a resource that is free to the Veteran.

*The VA will only pay up to 20% automatically from the back pay. If the agreement is over 20% then, the Veteran will need to pay the difference to the lawyer themselves.

**Expenses can be things like postage, travel costs, or printing supplies.

BEFORE You File an Appeal

BEFORE you appeal your claim do so in an informed manner! Don't run back onto the battlefield without a plan!

Read your Decision Letter!

  • Was all the evidence you submitted listed under evidence considered?

  • What were the favorable findings?

  • What does it say your claim was missing?

  • Did it say you missed an exam?

Your decision letter should outline what you need to do in order to make a successful appeal!

Getting a Copy of Your Decision Letter

You can get a copy of your decision online HERE*.

Alternatively, after 10 days have past since the claim closed, you can call the VA at 1-800-827-1000 and request them email your decision letter to you.

*This CAN be used to get old decision letters as well.

Getting a Copy of Your C-file/Examiner's Report

Click HERE to learn how to get your C-file/Examiner's reports.

Denied Service-Connection

If you were not granted Service-connection, what was missing from your claim?

  • Was it a current diagnosis;

  • An in service event; and/or

  • Did the examiner say that there was a less likely than not chance that your disability was the result of your service or service-connected disability?

If you feel that the rater did not properly evaluate the evidence that was a part of your claim, an HLR may be appropriate.

Otherwise if you need to submit additional supporting information, a supplemental claim may be appropriate. Veterans who need help with the determination of service-connection may want to look into submitting an Independent medical opinion (IMO)/Nexus letter, Personal statement, or Buddy statement(s), as appropriate.

If you were told you missed an exam then file a supplemental claim and state, "I am willing an able to attend exams at this time" on the appeal form.

Low Rating

If you were granted service-connection (at least 0% evaluation) but were given an evaluation that was lower than what you expected, you can appeal this. Your decision letter should detail what the criteria is for the next highest evaluation. It should also note if the rating you were awarded was the maximum. If it says you are the maximum... you should really leave it be...

If you feel that you meet the Requirements for a higher rating then you should verify the information in the Examiner's Disability Benefits Questionnaire (DBQ). If the DBQ indicates you should have gotten a higher rating, an HLR may be appropriate. If the DBQ indicates otherwise then a supplemental claim (with medical evidence dated BEFORE the rater made their decision, would be more appropriate).

Priority Processing

Certain factors can make a Veteran eligible for priority process.

  • Click HERE to learn more.

Higher-Level Review (HLR 20-0996)

An entirely new review of your claim by an experienced (more senior) rater; formally these are titled Decision Review Officers (DRO).

IMPORTANT NOTES:

  • New evidence (evidence received AFTER the decision was made) CANNOT be considered in a Higher-Level Review!

  • Intent to files do NOT apply to HLRs!

  • Unlike other raters DROs get the extra authority to issue a differences of opinion.

    • Differences of opinions include weighing evidence differently which result in a favorable outcome for the Veteran. These differences of opinions are NOT errors made by the last rater, just a difference of opinion.

    • Mere differences of opinions CANNOT result in a negative outcome for the Veteran!

NOTES:

  • The Veteran CANNOT file a HLR, back-to-back. HOWEVER, you CAN file a HLR into a supplemental, into another HLR, into a supplemental, etc.

  • The Veteran CANNOT request an HLR after having a BVA denial.

  • The Veteran MUST submit their HLR within a year of their claim's decision. Veterans are NOT allowed to request an HLR after this time frame.

Question Description
Should I choose this? If you think the evidence the VA has is enough to make a positive decision.
What will happen? A senior rater will reexamine your claim.

Informal Conference

If you would like to plead your case to the person doing your appeal you may request an informal conference (Section IV of the form).

IMPORTANT NOTES:

  • If the rater CAN make a POSITIVE decision based upon the evidence of record the rater CAN decide that an informal conference is unnecessary! So do not feel bad if one is NOT scheduled!

  • You can ONLY talk about errors of fact or law as it relates to your appeal during this call.

    • This would include things such as, the VA missing or not considering evidence that was originally submitted with your claim.

    • Ideally, you would have this planned out so you can point out specifically where evidence is: 'Evidence that I had an in-service event can be found on page x of my service treatment records'.

  • Choosing to have an informal conference may result in your appeal taking longer to process.

Alternative to Informal Conference

Instead of requesting an informal conference you may submit a Personal statement with your HLR.

Again, you can ONLY write about errors of fact or law as it relates to your appeal. Remember, you CANNOT use this statement as a means to add new evidence to your appeal!

Submitting an HLR

There are several options to submit your HLR to the VA:

  • Complete and Submit Online Form

  • Submit Paper Form Online

  • Via your VSO

  • In-person

    • Click HERE to locate your nearest Regional Office.

  • Snail Mail

 Department of Veterans Affairs
 Claims Intake Center
 PO Box 4444
 Janesville, WI 53547-4444

!!WARNING!!

  • The VA will NOT go by the postmark! The VA will go off the date the appeal is initially processed by the VA's intake center. As such, if your appeal is processed AFTER the one year deadline your appeal will be refused and you WILL lose your effective date (back pay)!

Deciding a HLR

If the senior rater is able to make an appropriate grant/denial based upon the existing evidence of record they will do so. However, if the senior rater finds a Duty to Assist (DTA) error they will make a decision and close the HLR; noting the DTA errors they found that need to be addressed.

These DTA errors will be addressed in a supplemental claim, which is opened automatically (at some point).

IMPORTANT NOTES:

  • This supplemental claim DOES allow you to submit new and relevant evidence!

  • This supplemental claim CAN in exceptional circumstances be decided by raters who are NOT DROs.

    • When there is an extensive backlog of appeals the VA Central Office may deem it necessary to assign some of these converted HLRs to non-DRO raters, to speed up decision making. These non-DROs are NOT given the extra authority or power that DROs get!

  • If the supplemental claim decision results in another denial you CAN file a HLR on the decision!

Supplemental Claim (20-0995)

An opportunity to submit NEW AND RELEVANT evidence.

  • New: The VA did not previously have/consider it.

  • Relevant: Directly addresses the rationale for the denial.

    • For example: If you were denied for having no diagnosis, you need to supply evidence of a diagnosis.

New and relevant evidence can take the form of:

IMPORTANT NOTES:

  • Remember you have 1 year from the claim's decision to file an appeal (if you want to potentially keep your back pay). Which means 1 year to develop additional evidence for your claim. We recommend waiting until you have enough evidence to be successful before filing - your VSO or lawyer can advise you on this. Do not file appeals with insufficient evidence, this just gums up the system for you and other Veterans!

    • Do know you CAN extend this window for by filing an Intent to file! The intent to file will give you a year (from the intent to file) to gather evidence. While allowing you to keep back pay.

  • If the VA grants an increased rating based upon a supplemental claim, the Effective date does NOT automatically go back to the original claim!

    • If MEDICAL evidence shows an increase is warranted that is dated BEFORE/AFTER you initiated your supplemental claim the effective date will typically be the date of the medical evidence showing an increase was warranted; this typically is the date of your Examination!

  • Do NOT file a supplemental claim for an evaluation after a year! Even if you have new evidence showing a higher evaluation was previously warranted! If you do, at best the effective date will be the date the supplemental was initiated or at WORST the date of the examination conducted AFTER your filed the supplemental! So in these cases, just file a increase claim!

NOTES:

  • Veterans CAN file a supplemental claim ANYTIME after their denial. However, to potentially get back pay from the start, they must file within a year of the last decision.

  • Veterans CAN submit a supplemental claim over and over again. So long as, there is new and relevant evidence being submitted every time.

  • If you need the VA to get non-federal medical records or Vet Center records for you, then you will need to also submit a VA Form 21-4142/21-4142a.

Question Description
Should I choose this? If your appeal requires new evidence.
What will happen? A decision will be made looking at the new and previous evidence.

Submitting a Supplemental Claim

There are several options to submit your supplemental claim to the VA:

  • Complete and Submit Online Form

  • Submit Paper Form Online

  • Via your VSO or lawyer

  • In-person

    • Click HERE to locate your nearest Regional Office.

  • Snail Mail

 Department of Veterans Affairs
 Claims Intake Center
 PO Box 4444
 Janesville, WI 53547-4444

!!WARNING!!

  • The VA will NOT go by the postmark! The VA will go off the date the appeal is initially processed by the VA's intake center. As such, if your appeal is processed AFTER the one year deadline your appeal will be refused and you WILL lose your effective date (back pay)!

Supplemental Claim Status

Currently claim trackers will either show your claims status as:

  • "We don't know your status"; or

  • "A reviewer is examining your new evidence".

Either of these statuses will remain till the claim is actually closed out.

Board Veterans' Appeals (BVA) AKA, Notice of Disagreement (NOD), AKA 10182

Review by a Veterans Law Judge at the Board of Veterans’ Appeals. These judges are NOT bound by VA Central Office policy decisions and CAN issue grants that raters are unable to do! So you will see decisions which are inconsistent or directly contradict VA policies being made by these judges.

IMPORTANT NOTES:

  • Due to the time this takes to complete a BVA appeal (YEARS) it is commonly only chosen once the other appeal options (Supplemental Claim and/or Higher Level Review) have been exhausted.

  • The Veteran can MUST submit their appeal to the BVA within a year of their claim's decision. Veterans are NOT allowed to request a BVA after this time frame.

  • Veterans are NOT allowed to request a BVA appeal after receiving a BVA decision for the same claimed item.

There are three lanes (appeal dockets) in which the Veteran can choose when going through the BVA:

  1. Direct Review

  2. Evidence Submission

  3. Hearing

1. Direct Review

In essence an HLR. However, instead of a senior rater a judge reviews your claim. Due to there be far fewer judges than senior raters, this WILL take much longer than an HLR.

NOTE:

  • You CANNOT submit new evidence.

2. Evidence Submission

In essence a supplemental claim. However instead of a rater a judge reviews your claim. Due to there be far fewer judges than raters, this WILL take much longer than an supplemental claim.

NOTE:

  • You CAN submit new evidence. If you do not submit all the evidence with your claim you have 90 days from the day your NOD is received.

3. Hearing

Your chance to plead your case before a judge by videoconference (or in-person in DC). After your hearing you will have 90 days to submit any new evidence. The Judge will make a decision considering the hearing and the evidence of record.

Submitting to BVA

There are several options to submit your appeal to the BVA:

  • Online

  • Via your VSO or lawyer

  • Fax

 844-678-8979

  • Snail Mail

 Board of Veterans' Appeals
 P.O. Box 27063
 Washington, DC 20038

Higher Courts (Courts above BVA)

If you run out of new evidence and feel you just really need to take it to a higher judge then you can continue!

Court of Appeals for Veterans Claims (CAVC)

These judges can really do whatever they want in terms of interpreting the laws and regulations that bind the VBA. As such, decisions made by the CAVC create case law that does change how the VBA operates!

Veterans have 120 days after their BVA decision in which to have their appeal in the hands of the CAVC. This appeal MUST be made to the CAVC itself and NOT the VA!

While the Veteran is allowed to represent themselves it is STRONGLY recommended that they seek out a lawyer at this stage!

Court of Appeals for the Federal Circuit (CAFC)

Veterans MUST submit a Notice of Appeal (NOA) to the CAFC through the CAVC, within 60 days after the judgment is issued.

U.S. Supreme Court

The last and highest court you can go to is the U.S. Supreme Court.

Researching Previous Cases

The BVA decision Search engine is your best friend to see how other cases similar to yours have been decided. Plug in keywords for your claim/appeal and search away!

Click HERE to see past cases decided by the Court of Appeals for Veterans Claims (CAVC).

IMPORTANT NOTE:

  • BVA does NOT establish case law! But the decisions can help you if you try and use the arguments they presented.

Accredited Agent and Attorneys

For Veterans who have a claim that has a certain legal angle or issue(s). Obtaining the services of an accredited agent or attorney may be beneficial.

IMPORTANT NOTE:

  • Most appeals do NOT require legal assistance!

In order for an accredited agent or attorney to represent the Veteran. Both parties must sign a VA Form 21-22a.

IMPORTANT NOTE:

  • Pay attention to Block 23! If you are only interested in having representation for a specific claim you MUST write this interest in this block! Failure to do so allows them to file additional appeals without additional consent!

Fees

By Law the Veteran CANNOT be charged more than 33.3% of any back pay the Veteran receives from the VA.

IMPORTANT NOTE:

  • If the Veteran feels their agent/attorney did not earn their fee. Due to perceptions of poor communication with the Veteran, lack of action, etc. The Veteran CAN file a motion to have the fee reduced OR removed.

For more information on the process click HERE.

Clear and Unmistakable Error (CUE)

Oh no, it has been over a year but I still want all my back pay! If your claim has a CUE it is possible to still get that back pay.

CUEs are EXTREMELY fact specific as such it is STRONGLY advised that the Veteran seek out an experienced VSO or lawyer to help them! If the Veteran makes an error in their filing the VA does NOT have a duty to assist them in the cases of CUEs. As such the CUE may be wasted.

CUEs are NOT a matter of a difference in opinion. CUEs involve errors that cannot be debated and must be such, that a reasonable person would agree that the VA messed up.

CUEs must be based upon evidence that was available to the VA at the time the decision was made. The Veteran cannot assert that later evidence or evidence that was not given to the VA proved that the Veteran should have been given a favorable decision!

Further, CUEs must be considered in the realm of what the laws/regulations/policies were at the time they were decided. Veterans CANNOT try to apply current laws/regulations/policies to decisions that were made prior to them!

In order to invoke a CUE the Veteran MUST state a CUE has occurred AND MUST specify the factual or legal error(s) at issue.

Seriously, get help!

IMPORTANT NOTES:

  • You only get ONE shot at a CUE per issue. That's it! If you pick something that isn't a CUE and you look back and 'gosh, oh shoot this other thing is the CUE!' That is it. Thanks for playing!

  • Duty to Assist errors can NEVER be the basis of a CUE; as only evidence of record at the time of the prior decision can be considered.

  • CUEs are a knife that CAN cut both ways! Meaning these errors getting corrected CAN end up hurting or helping you. It is common for raters to find multiple additional CUEs when you declare a CUE; since a rater who already made at least 1 CUE is generally just gonna mess everything else up!

    • CUEs CANNOT sever service-connection for conditions that have been service-connected for at least 10 years (barring findings of the grant itself having no legal basis).

    • CUEs CANNOT reduce an evaluation held for at least 20 years.

  • Forgotten claims (conditions not rated) and missed issues (conditions that should have been inferred or ancillary benefits that were overlooked) are NOT CUEs! While they are certainly administrative errors, they are not CUEs because the VA has not erred in making a decision one way or the other.

    • Generally forgotten and missed issues/benefits CAN be granted WITH back dated effective dates! You just need to point out in the claim/appeal that the VA failed to rate the issues in the previous decision and EXPLAIN why the VA should have considered it or that you meet the criteria of a grant previously and the VA failed to grant.

  • The VA does not have a form for forgotten claims or CUES; So you can file via a Personal statement or on a (20-0995) to help the VA with keeping track of the claim.

CUE Examples

  • Assigning incorrect SMC coding on codesheet

  • Bilateral factor was not set properly in the master record (the codesheet derives its information from the master record)

    • Rater set your left ankle as a right ankle. This can result in being underpaid if the bilateral factor would have increased your combined evaluation. The master record is mentioned here because the codesheet does NOT display what bilateral factor is selected by the rater; only what diagnostic codes have an active bilateral factor that is impacting your combined evaluation.

  • Conditions given a singular rating that should be rated separately

  • Conditions given separate ratings that should have been given a combined singular evaluation

  • Effective dates

    • Missing intents to file, that claim was filed within a year of separation, not applying Liberalizing law, etc.

  • Granting/Denying service-connection/benefits

  • Rating (too high or too low)

  • Rating decision took an action that resulted in reduced disability compensation payments and due process was NOT provided

Frequently Asked Questions

    • You can check the status of your appeals on VA.gov, by calling 1 (800) 827-1000, or making a VERA appointment.

    • It can take a week or two before it will show up online.

    • It is possible, however the VA websites often do not update everything at the same time. So give it another day.

      • Alternatively, if you filed an HLR. If an error was found that required the VA to obtain new evidence then your HLR will be administratively closed and re-opened as a supplemental claim.

    • In addition to the ability to issue differences of opinions: DROs are allowed to declare CUEs (that do not harm the vet) without getting another person to approve their determination.

    • Yes, your appeal has now become a supplemental claim. So you are free to Submit any new and relevant evidence to your claim.

    • Fill out a new Board Appeal form. Make sure you check the box for the new review option, and list all of the issues.

      • IMPORTANT: You have one year from the date on the decision, or 60 days from the date that you submitted your Board Appeal, whichever is later to make this change!

    • You can submit one Board Appeal form and attach additional pages to explain how you want your issues reviewed, or you can submit multiple Board Appeal forms – one for each review option.

    • If you disagree with the Board’s decision and have new and relevant evidence that supports your case, you can file a Supplemental Claim. You can also appeal to the U.S. Court of Appeals for Veterans Claims.

    • Tell the Board in writing that you wish to withdraw your Board Appeal. Then you can file a Supplemental Claim or Higher-Level Review.

    • That is a personal decision. However, unless your appeal hangs on a certain legal issue/angle then the benefit they provide may not be there.

    • You can appeal a single decision, two, all of them, etc. Do know you CANNOT appeal the same condition via multiple appeal types at the same time!

    • This box only applies to Veterans who are wanting to convert their 'legacy appeal' to the modern appeal processes. In short, unless you have been in a continuous appeal since circa 2017, this box does NOT apply to you and CAN be ignored.

    • Yes, by filing an appeal you invite the VA to review your file. If it is found that a Clear and Unmistakable Error occurred and you were rated either too high or that service-connection was granted in error, the VA WILL start action to fix the error! That said, a mere difference of opinion is NOT enough! Further, if exams are ordered as apart of you claim and it is found that your condition(s) have improved, the VA can start action to reduce you!

    • No, the VA permanently keeps ALL records they receive.

    • Your pay will continue as appropriate, during the appeals process.

    • Yes.

    • No, each appeal is processed separately from all other claims/appeals.

    • No, BVA cases do NOT establish precedence, only CAVC courts and higher do. However, you can try and use arguments presented in those cases.