Adjudications & appeals: when VA denies your benefits claim, what can you do?(Department of Veterans Affairs)

When she was in law school, Linda Blauhut, assistant general counsel at the Paralyzed Veterans of America (PVA) National Office in Washington, D.C., never considered going into the area of veterans law. Now she realizes how rewarding it has been for her to work in this field.

The Department of Veterans Affairs (VA) serves millions of veterans seeking benefits. In some cases, the bureaucratic process can be complex, and some veterans need assistance in presenting their claims. Especially at the U.S. Court of Veterans Appeals, qualified representation is essential for veterans to have a fair chance of success.

PVA encourages today’s law students to consider practicing veterans law even on occasional bases.

“While a full-time practice concentrating in the field of veterans law may not be practical for everyone, representing [this population] on an occasional basis, whether for a fee or pro bono, can be an important contribution to society,” says PVA National President Joseph Fox Sr.

To reach law students, PVA has launched a new initiative: “Making A Difference–Careers in Veterans Law,” a six-minute DVD sent to all law-school deans across the country to share with their students. The video explains some of the hardships veterans face in the legal process when trying to receive much-needed claims.

Legal representation can help you untangle the “web” of terms and regulations associated with benefits-claims issues. For example, are you familiar with BVA, NOD, AOJ, and SOC? What are motions and remands? Do you know the steps needed to appeal? What is the time frame for appeals? What fees are involved?

WHEN PROBLEMS ARISE

The following article summarizes the processes and procedures available to claimants who disagree when VA denies benefits claims. Congress has provided dissatisfied claimants with two ways to challenge such VA decisions.

He or she can appeal the denim administratively to the Board of Veterans’ Appeals (BVA). An appeal to BVA involves an informal, non-adversarial, administrative review process. If BVA denies an appeal, a claimant can appeal the decision to the United States Court of Appeals for Veterans Claims (Veterans Court). Unlike VA‘s appellate process, the Veterans Court’s appellate process is formal and adversarial.

When the Veterans Court decides an appeal, its decision is subject to judicial review by a superior court. Congress gave the United States Court of Appeals for the Federal Circuit (Federal Circuit) limited authority to review Veterans Court decisions. This article does not discuss the appellate procedures that govern appeals to the Federal Circuit. These procedures, however, are similar to those the Veterans Court uses.

A glossary elsewhere in this article defines some of the technical terms BVA and the Veterans Court use when considering and deciding appeals.

VA‘S CLAIMS AND APPEALS PROCEDURES

VA‘s claims process begins when a veteran files a claim for a VA benefit. When VA receives a claim, it is initially reviewed by an agency of original jurisdiction (AOJ)–in most cases, one of VA‘s regional offices. Most of the claims received are developed and decided by these offices.

If AOJ finds the claim is incomplete, it will notify the claimant about the information or evidence needed. When AOJ decides it has adequate information to make an informed decision, it adjudicates the claim by awarding the benefit sought or denying the claim.

If AOJ denies the claim, it must send the claimant notice of the denial, notice of the fight to appeal to BVA, and notice of the applicable time limits for initiating and perfecting an appeal to BVA. Once AOJ mails a notice of claim denial, the claimant has one year to file a Notice of Disagreement (NOD) with VA.

NOD is a written communication from a claimant to AOJ expressing disagreement with the initial AOJ decision. Important: If the claimant does not file a NOD with AOJ within the one-year period, AOJ’s decision becomes “.final. ” Once AOJ’s decision is final, it is no longer subject to review on appeal by BVA.

If the claimant files a timely NOD to AOJ’s denial of the claim, AOJ must reexamine the claim and determine if additional review or development is warranted. If AOJ does not change its decision, it must prepare and send the claimant a Statement of the Case (SOC).

SOC is an important document. VA prepares the SOC to assist the claimant in perfecting an appeal to BVA. The statement must be complete enough to allow the claimant to present written and oral arguments to BVA. The SOC must contain this information:

* A summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed

* A citation to pertinent laws and regulations and a discussion of how they affect the agency’s decision

* The decision on each issue and a summary of the reasons for such action

If the claimant decides to continue the appeal to BVA after reading the SOC, he or she must perfect the appeal with the timely filing of a substantive appeal–a formal response to the agency’s SOC. It should detail the specific errors of fact or law AOJ made in denying the claim. To the extent possible. the arguments the claimant presents to BVA in the substantive appeal should be related to specific items AOJ addressed in its SOC.

Once the claimant perfects the appeal to BVA by filing the substantive appeal, BVA has jurisdiction. In considering the claimant’s appeal, BVA has authority to decide all questions of law and fact necessary to a VA decision under a law that affects provision of benefits to a claimant.

BVA decides the appeal by issuing a written decision to the claimant. This must contain findings of fact and conclusions of law on all material issues of fact and law presented on the record. the reasons or bases for those findings and conclusions, and an order granting or denying the benefit sought by the claimant in the appeal. In deciding a claimant’s appeal, BVA has authority to (1) award the benefit sought on appeal, (2) remand the appeal to AOJ with instructions to conduct additional development of the claim, or (3) deny the benefit sought on appeal.

If BVA denies the claim, the claimant can obtain judicial review of the decision from the Veterans Court. The next section discusses, in general terms, how to file and present an appeal to the Veterans Court.

JUDICIAL REVIEW OF BVA DECISIONS

Until November 1988, if BVA denied a claimant’s appeal, the denial was final. Claimants could not appeal the BVA decision. A law barred the courts from reviewing VA-benefit decisions.

Congress decided to permit judicial review of BVA decisions denying claims for benefits. It passed the Veterans’ Judicial Review Act (VJRA) in November 1988.

Among other things, VJRA (1) repealed the law barring judicial review of VA decisions, (2) created the Veterans Court, (3) gave the Veterans Court authority to review BVA decisions, (4) established the standards of review the Veterans Court must employ when conducting judicial review, and (5) provided limited judicial review of the decisions of the Veterans Court by the Federal Circuit (Federal Circuit).

In order to appeal a BVA decision to the Veterans Court, a claimant must file a notice of appeal with the Veterans Court. This must take place within 120 days after the date on which BVA mailed its decision to the claimant.

Once the claimant files an effective notice of appeal, he or she is designated as the “appellant” and VA is the “appellee.” The appellant challenges the validity of the BVA decision; the appellee defends the decision’s validity.

An appellant’s filing of a timely notice of appeal gives the Veterans Court authority to review BVA’s decision. This authority to consider and decide the appeal is known as “jurisdiction,” which means the Veterans Court has the legal authority to decide the appeal. If the Veterans Court were to issue a decision in an appeal in which it did not have jurisdiction, its decision would have no legal effect.

The filing of a timely notice of appeal is the most important requirement an appellant must fulfill in order to have a BVA decision reviewed by the Veterans Court. If a notice of appeal is not filed with Veterans Court within 120 days after BVA mailed the claimant its decision, the Veterans Court will not review the BVA decision. It will not consider the appeal because it will not have the legal authority to do so.

Anyone who appeals to the Veterans Court must comprehend the nature of the Veterans Court. It is not part of VA. It is an independent court that exists to review BVA decisions.

The Veterans Court is also an appellate court. As such, it can only review BVA decisions to determine if they are rational, supported by evidence, and comply with requirements of law.

Because it is an appellate court, the Veterans Court takes no testimony, accepts no evidence, and conducts no trials. In performing its judicial-review function, the Veterans Court can only look at the evidence that existed before BVA when it made its decision. For example, if an appellant were to file with the Veterans Court a new medical opinion (as evidence supporting the appeal) that postdates BVA’s decision, the Veterans Court will not consider the medical opinion.

Additionally, it is important for appellants to understand that the Veterans Court’s appellate process is adversarial in nature. This court has no obligation to favor the appellant over VA. Indeed, the Veterans Court must be an impartial and unbiased decision-maker. Unlike VA‘s appellate process, the Veterans Court does not give the appellant the benefit of the doubt. To the contrary, the appellant bears the burden to demonstrate to the Veterans Court’s satisfaction that BVA committed serious error in its decisions.

When conducting judicial review of BVA decisions, the Veterans Court presumes the BVA decision is correct. This presumption remains effective until the appellant demonstrates the BVA decision is the product of factual or legal error.

Furthermore, in every Veterans Court appeal, VA is represented by its attorneys. The job of these attorneys is to defend BVA’s decisions. Appellants can expect VA‘s attorneys to use all appropriate procedural and legal means at their disposal to persuade the Veterans Court to affirm BVA’s decisions.

PERSUADING THE VETERANS COURT TO REVERSE BVA’S DECISION

The purpose of taking an appeal to the Veterans Court is to challenge BVA’s decision denying benefits. However, it is not enough for an appellant to simply challenge the decision. He or she must persuade the Veterans Court that BVA erred in denying the appeal for VA benefits. This is not an easy task.

Remember, the Veterans Court’s appellate process is formal and adversarial. The appellant cannot call a Veterans Court judge on the telephone to argue the appeal’s merits, nor can he or she go to the Court to talk about the appeal with a judge.

If the appellant is unable to talk to a judge directly, how does he or she persuade the Veterans Court that the BVA decision contains prejudicial error of fact or law’?

The primary mode of communication between the Veterans Court and the appellant is the appellate brief–a document the appellant files with the Veterans Court. The brief’s purpose is to persuade the Veterans Court to rule in the appellant’s favor. If this brief is not persuasive, the Veterans Court is unlikely to reverse the BVA decision.

WRITING A BRIEF

A thorough discussion of how to prepare a persuasive brief is beyond the scope of this article. Writing a persuasive brief is the subject of numerous books and articles. However, here are a number of suggestions:

* The appellant must understand what the Veterans Court is reviewing when it decides the merits of an appeal. This court focuses its attention on the BVA decision.

This makes sense. Congress gave the Veterans Court authority to reverse, affirm, modify, or remand BVA decisions. Thus, before the appellant begins preparing a brief, he or she should have a good understanding of the BVA decision. Otherwise, it will be difficult to persuade the Veterans Court to reverse the BVA.

* In preparing a brief, the appellant must also understand that the Veterans Court employs different standards of review when deciding different issues. The issue’s nature controls the standard of review the Veterans Court will employ.

For example, the Veterans Court reviews the factual determinations of the BVA under the “clearly erroneous” standard of review. This standard is extremely deferential to BVA. The Veterans Court will not reverse BVA’s factual finding unless it determines there is no plausible basis in the evidence of record to support the factual finding. However, when the issue before the Veterans Court involves interpretation of a statute, the Veterans Court can decide this issue without giving any weight to BVA’s interpretation. It can make its own independent decision on this question of law.

* When preparing the brief, the appellant should identify the nature of the issue the Veterans Court will be asked to decide. If the issue is factual in nature, the appellant’s argument must persuade the Veterans Court that the finding is “clearly erroneous.” Appellant’s brief must argue and establish that evidence of record does not contain a plausible basis for the factual finding.

* The appellant’s brief should not misstate or exaggerate the nature of the evidence in the record before the Veterans Court. This court thoroughly reviews the evidence before it. If the brief exaggerates the significance of the evidence, the court may be less likely to accept the appellant’s legal arguments.

* If the appellant’s brief refers to the existence of evidence in the record before the Veterans Court, the appellant should cite the page where such evidence appears. Veterans Court judges read hundreds of briefs every year. Try to make their job easier. By citing the page where the evidence you refer to appears, you will make it easier for the judges to grasp your appeal’s factual underpinnings.

* An appellant should make sure the legal citations appearing in the brief are correct. If your legal citations are incorrect, the Veterans Court must try and locate the incorrectly cited law. This increases the Veterans Court’s workload and could dispose the court to look less favorably on appellant’s appeal.

* The appellant’s brief should not contain typographical errors or misspellings. Before filing the brief, the appellant should ask a qualified person to proofread it.

* Finally, the brief should not contain arguments attacking the character or professional qualifications of the BVA member who issued the decision that has been appealed to the Veterans Court. Veterans Court decisions are decided by professionally trained lawyers. Veterans Court judges will not be moved by an argument attacking the character or professional competency of BVA members.

The Veterans Court has decided thousands of appeals. The PVA Office of General Counsel’s staff members are not aware of any Veterans Court decision that reversed a BVA decision based on an appellant’s argument that the BVA member lacked professional competency. In order to win the appeal, the appellant’s brief must focus on the BVA decision and the laws that will control the Veterans Court decision.

Contact Information

United States Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 (202) 501-5870 / (202) 501-5848 (fax)

The Veterans Consortium Pro Bono Program

Case Evaluation and Placement Component 601 Indiana Avenue, NW, Suite 1010 Washington, DC 20004-2935 (8[38) 838-7727 (toll free)/(202) 628-8164/ (202) 628-8169 (fax) / www.vetsprobono.org /vetsprobono@rcn.com

Court Costs

Question: Is there a fee ill want to appeal to the Veterans Court?

Answer: Yes, $50. Make your check or money order payable to the U.S. Court of Appeals for Veterans Claims.

Question: I have been out of work for many years. Will the court consider my appeal if I do not pay this filing fee?

Answer: You can file a form attesting that you cannot afford to pay it. Based on the information you submit, the court can waive payment of this fee. If this occurs, you can continue with your appeal.

Glossary

Adjudication–the process VA uses to reach a decision on a claim for benefits. It includes filing a claim, developing evidence, deciding the claim, and sending notice of the decision to the claimant.

Agency of original jurisdiction (AOJ)–the VA regional office, medical center, medical clinic, or other VA office that made the initial decision on a claim for VA benefits or the VA office where a claimant’s records are permanently transferred.

Board of Veterans’ Appeals—the highest decision-making authority within VA. It considers administrative appeals brought by claimants denied benefits by VA. BVA’s jurisdiction extends to all questions of law and fact necessary for decisions under a law that affects VA‘s provision of benefits to veterans or their dependents or survivors,

Canons of construction—the rules and principles a court uses when trying to determine the meaning of language appearing in a statute, regulation, or other legal document.

Finally adjudicated claim–one filed with VA that has been allowed or disallowed by the AOJ, with the decision having become final because the claimant either did not file a timely appeal to BVA, or did file a timely appeal, which BVA denied.

Joint motion for remand,–the parties to an appeal before a court ask the court to send the case to the lower tribunal for additional consideration.

Litigation–the process of deciding legal disputes in a court.

Mandate–a court’s decision in the case becomes final and, in most instances, is not subject to further review.

Notice of Appeal–a document filed with a court that initiates the process seeking judicial review of a decision.

Notice of Disagreement (NOD)–a written communication from a VA claimant to VA expressing dissatisfaction or disagreement with an adjudicative determination of the AOJ. Generally, a NOD must be filed with the agency of original jurisdiction within one year from the date the agency of original jurisdiction mailed notice to the claimant of its initial decision denying the claim. VA will consider as “timely filed” a NOD postmarked before the end of the one-year filing period.

Title 38, Code of Federal Regulations–contains the regulations VA has adopted to implement the statutes contained in Title 38, United States Code. VA regs receive the same respect from reviewing courts that the courts give to the statutes Congress enacts.

Title 38, United States–Code contains the statutes that govern VA and the administration of its benefits programs.

For a complete Glossary of all the terms relating to adjudications and appeals, please look for this article on our Web-site at www.pn-magazine.com

Michael Horan is associate general counsel, Veterans Appeals Litigation Office, at the Paralyzed Veterans of America National Office in Washington, D.C.