| Claims
Before the Regional Office
When a
veteran submits a claim to a regional office, the usual procedure
is for the RO to contact the National Personnel Records Center
(NPRC) to acquire the veteran’s service medical records. The
RO also attempts to contact any sources of post-service medical
treatment referred to by the veteran to acquire records of
that treatment. (To download a copy of an official claims
form, click here.
If your claim is for pension benefits -- including cause of
death -- click here
to download the correct form).
At this
stage, the RO sometimes requests the veteran be scheduled
for a physical examination and sometimes does not. There is
no consistently applied standard which determines when an
examination will be scheduled (examinations should always
be scheduled for increased rating claims, however).
If a veteran
is denied benefits at the RO level, he or she has one year
from notification of that decision to submit a notice of disagreement
with the denial. The RO should then issue a statement of the
case which details the specific reasons the veteran’s claim
was denied and provides copies of the specific laws under
which it was denied. (To download a copy of a VA Form 21-4138
("Statement in Support of Claim") which can be used for your
notice of disagreement form, click here).
Most statements
of the case merely duplicate the reasoning set forth in the
original rating, however. Don’t expect much.
After
the statement of the case is issued, a veteran then must submit
a timely substantive appeal in order to "perfect" the appeal.
A VA Form 9 should always be included with the statement of
the case to allow for the claim to be perfected. If you receive
a statement of the case but not a VA Form 9, contact your
local office immediately. While doing that you should also
signify to the RO in writing as soon as possible that you
wish to appeal the denial. As noted below, a substantive appeal
can be filed on any piece of paper. Although a VA Form 9 is
helpful, it is not necessary to perfect an appeal.
After
a veteran’s claim is perfected, it is then put on the waiting
list to be adjudicated by the Board of Veterans’ Appeals in
Washington, D.C.
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Claims
Before the Board of Veterans’ Appeals
Once the
Board of Veterans’ Appeals (BVA) calls a case up, it usually
decides the case within 90 days. Factors which can affect
the turnaround time of a case include the complexity of the
claims involved and the speed with which the veteran’s representative
finishes its review of the claims folder (assuming the veteran
has a national representative, such as The American Legion
or Disabled American Veterans) and makes the case available
to the BVA.
BVA decisions
generally contain a much more thorough analysis of the laws
pertaining to a veteran’s claim and to the evidence contained
in the veteran's claims folder. The BVA will not lower a rating
assigned by the RO or hurt the veteran’s interest in any other
way, It is therefore always in a veteran's best interest to
appeal a denial of a claim at the RO level to the BVA.
The BVA
only renders a decision in about half the cases that come
before it every year. In the rest, it remands (returns) the
case back to the RO because of a defect in the decision by
the RO.
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Claims
Before the Court of Appeals for Veterans Claims
If a claim
is denied by the Board of Veterans' Appeals (BVA), a veteran
has 120 days from the date of the BVA decision to appeal it
to the Court of Appeals for Veterans Claims ("CAVC" or "the
Court").
After
a claim is appealed to the Court, the Department of Veterans
Affairs officially works against the veteran in his
or her claim. This is the first time the relationship is considered
to be "adversarial" (the veteran is the plaintiff before the
Court and The Secretary of the Department of Veterans Affairs
is the defendant). Although an attorney is beneficial to a
veteran at any stage of the VA process, it is critical that
veterans with claims before the Court obtain counsel. The
VA will have a group of attorneys working to deny your claim
at that point. Veterans without an attorney are at a severe
disadvantage.
Like the
BVA, the Court also remands a large number of the cases that
come before it. Also like the BVA, the Court will rarely (if
ever) reduce a benefit that has already been granted to a
veteran. Therefore, it is always in a veteran's interest to
appeal a denial by the BVA to the Court. The Court is generally
much more careful than the BVA in applying the law to the
facts of a given case.
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