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.
Find a Legion service officer in your state: www.legion.org/serviceofficers