Ask a Service Officer: Appeal VA's decision

Q: Should I appeal the VA's decision on my claim?

A: I encourage claimants to appeal an unfavorable decision if their representing service officer identifies information that VA missed that could result in a definite grant of benefits. However, there are cases where there is no legal basis for either appeal or reopening of the claim.

An initial appeal is referred to as a Notice of Disagreement (NOD), and it is imperative that you have accredited representation when filing a NOD. If you file a NOD without a representative, you may not be able to gain representation once the appeal process has begun, resulting in you being responsible for self-representation in the hearing.

When filing the appeal form, the claimant must tell VA that they disagree with the decision, and they must state if the disagreement is regarding one contention or multiple contentions listed on the same written decision. The claimant must also provide a reason for disagreement and cite evidence which supports their position.

The NOD must take place within one year from receipt of rating decision. At this point, the claimant becomes the appellate. The appellate is encouraged to utilize VA Form 21-0958 or VA Form 21-4138 as a secondary option. A NOD does not have to be packaged in either one of these forms in order to be accepted by the VA regional office (VARO). The NOD could be written on paper as long as it fulfills the requirement of informing the VA of disagreement and what is disagreed upon.

After proper receipt of the NOD, VARO will send correspondence to the appellate to determine if he or she desires a hearing, or a De Novo Review, taking into account all evidence while giving no consideration to the previous decision.

The upside to a NOD is that it preserves the effective date of a claim, meaning if a grant of benefits is achieved on appeal the appellate will be paid retroactively back to the date the claim was originally filed.

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  1. Is there anyone in the San Antonio area who can help me appeal a decision? My husband had bladder cancer. He served in Vietnam where he traveled each week to various areas as a payroll officer. All of his surgeons and oncologists encouraged him to put in a claim. He worked on the paperwork and submitted the claim. Two weeks after he passed away, his claim came for review. I continued the claim. I received a denial about a year later. The denial letter was a form letter and addressed to "Mrs. Whittecare". My name is Carlson. Again, I ask is there someone who can help me in the process of appeal in San Antonio? Thank you.
  2. In My Humble Opinion, If you think that the VA is wrong, always appeal. There is now a VA Directive for DBQ's (Disability Benefit Questionnaires)VHA Directive 001-2013 (I think) that spells out the VA Providers duty to assist Veterans by completing theses DBQ'S. Print a copy of the Directive and hand it to your Provider (Doctor), if they give you a problem, see the Hospital's Patient Advocate and give them a copy and ask them to help you. THIS IS A VA DIRECTIVE !!
  3. The Service Officer's answer contains the statement "If you file a NOD without a representative, you may not be able to gain representation once the appeal process has begun, resulting in you being responsible for self-representation in the hearing." As an attorney who exclusively represent Veterans, I can emphatically state that the statement is NOT true. Our law firm represents clients everyday who have previously filed NODs and even VA Form 9 appeals to the BVA. No one is going to stop you from retaining an attorney who is willing to represent you with your claim just because you have filed a Notice of Disagreement.
  4. Actually the statement of the service officer is completely true. First, it uses the word "may" which means it is not an absolute. Secondly, as attorneys have a tendency to only take cases they think they can win, or only put forth more than the bare minimum on cases they aren't sure about an attorney representing you may not be the best option. Many attorneys agree to take veterans with a fee agreement of 20% of the veterans retro award. Once the veteran signs that fee agreement it is the best interest of the attorney to ensure that the appeal process is not quick. The intent of the service officer writing the forum is not to tell veterans they won't be represented, but rather to go to the service organization first. You should never go to an attorney prior to having a DRO review of your claim. If an attorney ever tells you that they can get your case awarded more quickly, they are lying. If an attorney ever throws out figures to show how much more successful they are than service organizations, bear in mind service organizations don't turn veterans away. So they end up taking the claims that can't be won. Also, if the lawyer states they win any amount more than a service organization, don't believe them. I have asked service officers and they don't even track their win/loss ratio, so there is no way for a lawyer to have it. The point of what the service officer was saying in his statement is most service organizations once you enter appeals will not take you on as a client. Though they will represent you if you were already a client prior to submitting the appeal. Some service organizations will make an exception if you were represented by a state service organization and moved outside of the state, or if you were represented by a national service organization that does not have an office in the local VARO.
  5. I live in Mexico, so I can afford to live within my means. Februaray of this year I made tha trip to San Antonio VA for increased compenstion of a service connected injury, I receive 20%. I have not received the determination yet, one had not been mailed, the other sent to the wrong address. I have my brothers address on file, mailing things to Mexico is not a good idea. While in Mexico, after the BVA appointment I went to a chiropractor (licensed) who told me that the pain I am experiencing is due to malallignment of my bones, which he corrected. I no longer have to wear the inserts in my shoes as both legs are the same length now. He stated that arthritis is also a symptom of malalligned bones, which the BVA states is the cause of my pain. I have appealed the VA's decision to the last level and will probably need an attorney for the final stage of the appeal process.
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