Gardberg & Kemmerly, P.C. Attorneys at Law

Appeal process for VA decisions made before Feb. 19, 2019

Last week, a post on this blog discussed how an applicant can appeal a disability decision made by the Department of Veterans' affairs on or after February 19, 2019. The earlier appeal process will continue for decisions made before February 19, 2019. As there may be many people in Alabama, and elsewhere, who had their claims disallowed before February 19, 2019, it will be prudent to discuss the old appeal process as well since those applicants have one year to file an appeal against their decision.

A VA benefits applicant, whose claim was turned down before February 19, 2019 must file a Notice of Disagreement within one year of the date on the letter through which the claimant was notified of the decision. After filing the notice, a Decision Review Officer will review all evidence, including any new evidence. If the Officer's decision is negative, the applicant will receive a Statement of the Case.

Along with the statement, the applicant will receive VA Form 9, which has to be used by the applicant if he or she disagrees with the review decision and wants to continue the appeal. The applicant has to complete that form and return it to the VA within 60 days to continue the appeal to the Board of Veterans' Appeals. At this stage, an applicant may submit additional evidence in support of the claim for VA disability benefits.

The Board processes appeals on a first-in-first-out basis. However, if there are adequate reasons-such as physical illness, financial distress or advanced age-the Board will look at the appeal on priority. At this stage, the applicant has the option of requesting a hearing with a Veterans Law Judge, and any new findings will be appended to the case file. The judge will not make a final decision at the hearing.

The Board will review the appeal and come to one of three decisions. First, the Board will allow benefits. Second, the Board will deny benefits. Third, the Board will return the file to the Benefits Administration to review their earlier decision. If the Administration does not allow the claim even after the second review, it will return the appeal to the Board. If the Board denies the claim again, the applicant then has the right to file an appeal with the Court of Appeals for Veterans Claims within 120 days of the Board's decision.

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