Appeals to the Board of Veterans Appeals (BVA)

The VA’s Regional Offices often make mistakes when evaluating veterans’ disability benefits claims. Due to these errors, the VA may wrongly deny a veteran’s claims or award benefits at an incorrect disability percentage.

If a veteran disagrees with a VA Regional Office decision made on or after February 19, 2019, the veteran may appeal in one of several ways, including a supplemental claim, a higher-level review, and a request for review by the Board of Veterans’ Appeals (BVA).

Following the Veteran Appeals Improvement and Modernization Act (AMA) in 2017, the VA appeals process was amended to provide Veterans with more options to appeal a VA claim decision.

If the VA Regional Office’s initial decision was made before February 19, 2019, the veteran’s case will remain in what is known as the legacy appeals system unless and until the veteran opts into the new system created by the Appeals Modernization Act. Click here to learn more about the legacy appeals process and how to opt into the AMA system.

The Board of Veterans’ Appeals operates independently from the VA and the Veterans’ Benefits Administration (VBA). It consists of a Chairman, Vice-Chairman, and numerous Veterans Law Judges. As an appellate body, the BVA has the ability to review a VA appeal following a claim denial issued by a VA regional office and make a further decision about whether to uphold it, amend it, or reverse it. When an appeal reaches the BVA, a Veterans Law Judge will review the VA’s decision for errors. At this stage, a veteran has the opportunity to show the BVA that the VA Regional Office failed to consider important facts or misapplied the law.

Choosing A Type of BVA Appeal

To appeal to the BVA, the veteran must submit a VA Form 10182, Decision Review Request: Board Appeal, within one year after the date of the notice letter for the rating decision the veteran wants to appeal.

Under the AMA, when a veteran appeals to the BVA, they must choose one of three different dockets. The choice of docket affects whether the veteran will be able to submit new evidence and can significantly change how long it will take to get a decision. Veterans can request:

• A Direct Review: Veterans should choose this BVA appeal option if they do not want to submit any additional evidence or request a hearing. Decisions based on a direct review take approximately 365 days. This option is best when the VA Regional Office has made a mistake by misapplying the law or ignoring important evidence, and the veteran has no new evidence to submit.
• Evidence Submission: Veterans should choose this BVA appeal option if they would like to submit additional evidence in support of the claim. Veterans have 90 days from filing the NOD to submit supporting evidence. Evidence submitted after the VA decision is appealed and before the Notice of Disagreement (NOD) will not be considered and must be resubmitted. These appeals take over a year on average for a decision to be made. This option is best when the veteran has new evidence to submit but prefers to appeal to the BVA instead of filing a Supplemental Claimat the VA Regional Office.
• The Hearing Docket: Veterans should choose this BVA appeal option if they want to supply the VA with additional evidence and testify in front of a Veterans Law Judge during an in-person hearing. You must submit evidence at the hearing or within 90 days of the hearing when appealing this way—any evidence submitted after the VA decision being appealed and before the hearing will not be considered and must be resubmitted. It takes more than a year on average for a decision to be made on this type of appeal. This option is best when the veteran wants an opportunity to make their case directly to a Veterans Law Judge. It can be helpful sometimes to be able to answer the Judge’s questions directly, but this docket has significantly longer wait times than the others.

What the BVA Will Decide

Once the BVA has reviewed an appeal, it can either deny claims, grant claims, or remand claims (meaning it sends the claim back to the VA Regional Office to correct an error and decide the claim again). In the AMA system, the BVA can only remand a claim if the VA Regional Office failed to fulfill its obligation to assist the veteran in developing the claim—for example, if the VA Regional Office should have provided an examination of the veteran but didn’t, or if the VA Regional Office failed to obtain treatment records that the veteran identified as relevant to the claim.

If the BVA remands a claim, then the case will return to the VA Regional Office to complete whatever assistance the BVA decided it should provide to the veteran. If the VA orders an examination for the veteran, it is very important that the veteran reports to the examination. If the veteran doesn’t show up, the VA is likely to deny the claim. If something like work, illness, or other circumstances prevents the veteran from reporting for the examination, the veteran should submit an explanation to the VA in writing so that another examination can be scheduled.

Unlike in the legacy appeals system, once the VA Regional Office has finished developing the case and issued a new decision after remand, the case does not return to the BVA. If the veteran disagrees with the new rating decision, they may choose one of the three appeal or review options all over again.

How Can Our VA Disability Benefits Lawyers Help You Appeal?

The veteran disability claims attorneys of Berry Law can ensure your appeal persuasively states your case and provides the BVA with the evidence it needs to render a decision on your claim. We can show the BVA where the VA Regional Office got the facts wrong or misapplied the law and explain why you deserve benefits.

Berry Law also maintains a thorough catalog of research, case law, and medical studies that can help establish a link between an event and your impairment or a link between related medical conditions.

We know what it takes to prove that a veteran suffers from a current illness or injury that is connected to his or her service. We also know what goes into establishing a veteran’s proper disability rating.

The VA has accredited Berry Law attorneys to represent veterans in disability benefits claims. We have obtained millions of dollars in disability benefits for thousands of U.S. military veterans. We work with veterans across the country. Contact us today to discuss your case.

What Happens During BVA Appeals?

In order to appeal the VA’s initial decision, a veteran must file a Notice of Disagreement (NOD) with the VA Regional Office within one year after the VA issues the decision. The NOD must be submitted through VA Form 21-0958 and should include specific information about why the VA made a mistake when it denied the veteran’s claim or gave an inadequate disability rating.

A veteran may need to take additional action after the VA receives the NOD. For instance, the veteran may need to provide relevant evidence to support their VA disability claim, such as medical records or a “buddy statement” from a fellow service member who witnessed the veteran’s injury and can corroborate the date, time, location, and circumstances surrounding it.

A veterans’ benefits attorney from Berry Law can help you to navigate the claims process, develop your case, locate additional evidence, and make legal arguments based on the evidence.

Overview of the BVA Appeal Timeline

The VA Regional Office will send a Statement of the Case (SOC) after it receives a veteran’s NOD. The SOC explains the evidence, laws, and regulations that the VA used in its claim decision. The office will include VA Form 9 with the SOC. In order to continue the appeal, a veteran must fill out this form and send it back to the Regional Office within 60 days after it sends the SOC.

1. After submitting the VA Form 9 appealing the review officer’s second decision or SOC, the review officer will issue you a 90-day letter stating that the BVA has received your case. With this letter, you have “90 days” to submit any additional evidence for the BVA to consider in reviewing your claim.
2. An appeal to the BVA marks the second level in theappeals process. It is called a “substantive appeal.” At this stage, a Veterans Law Judge (VLJ) will review a veteran’s case de novo, or give it a “fresh look.”
3. When a veteran presents his or her case to BVA, the veteran must explain:

• Each specific issue raised on appeal
• What facts the office got wrong and/or how it misapplied the law
• Why the veteran appealed those issues
• What disability rating would satisfy the veteran
• Why the veteran disagrees with the VA Regional Office’s decision

1. A veteran can request a hearing before the BVA. However, a hearing request can delay the adjudication of the veteran’s claim. In your case, a Berry Law attorney can advise you about whether you should ask for a hearing.
2. After the BVA reviews all of the evidence and arguments, the BVA will:

• Affirm the VA Regional Office’s decision
• Enter a decision that combines all or some of the above.
• Reverse the decision and enter its own decision
• Remand or send back the claim to the Regional Office for further development of the case.

1. If the BVA believes the case is fully developed, the BVA will render a decision. However, if the BVA finds that the case must be further developed – for instance, the file lacks certain medical evidence – the BVA will remand it to the VA Regional Office.

In some cases, the BVA finds that a veteran has a service-connected disability, remands the case, and orders the Regional Office to calculate the veteran’s disability rating.

If a veteran disagrees with the BVA’s decision, the veteran can appeal to the U.S. Court of Appeals for Veterans Claims (CAVC), which marks the third level of the appeals process.

How Can Our Veterans Affairs Disability Benefits Lawyers Help You Appeal?

The veteran disability claims attorneys of Berry Law can ensure your appeal persuasively states your case and provides the BVA with the evidence it needs to render a decision on your claim. We will show the BVA where the VA Regional Office got the facts wrong or misapplied the law and explain why you deserve benefits.

Berry Law also maintains a thorough catalog of research, case law, and medical studies that can help establish a link between an event and your impairment or a link between related medical conditions.

We know what it takes to prove that a veteran suffers from a current serious illness or injury that is connected to his or her service. We also know what goes into establishing a veteran’s proper disability rating.

The VA has accredited Berry Law attorneys to represent veterans in VA disability appeals and claims. We have obtained millions of dollars in disability benefits for thousands of U.S. military veterans. We work with veterans across the country. Contact us today to discuss your case.