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Americas Veterans, Their Benefits, and the Appeals Process

Victoria Walker

Americas Veterans, Their Benefits, and the Appeals Process
BeccaVogt via iStock

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The US government honors America’s veterans by providing numerous healthcare and non-healthcare benefits. The Department of Veterans Affairs (VA), formally established in 1930, serves as the primary provider of these benefits. A large portion of the VA’s non-healthcare benefits consist of disability compensation for those who have been injured as a result of their service. The adjudication process for establishing entitlement to these disability benefits can seem daunting to attorneys unfamiliar with the process. However, once familiar with the application and appeals process, attorneys can give back to those who have sacrificed so much.

The initial application for a VA disability compensation claim can be completed online or by completing a paper form. The application requests basic information including contact information, a list of disabilities for which the veteran is claiming compensation, and basic information about the veteran’s service. In addition, the application should include any medical or lay evidence, including service treatment records and post-service treatment records, which may help substantiate the claims contained in the application.

After the application is submitted, a regional office (RO) will review the veteran’s application and all available evidence, and issue a decision on each of the claims (the decision is known as the Rating Decision (RD)). If any of the claims are denied by the RO, the veteran must initiate an appeal by filing a Notice of Disagreement (NOD) within one year of the mailing date of the RD. Veterans generally secure representation from a veterans service organization, accredited representative, or accredited attorney to assist them with the appeals process.

In response to the NOD, the RO will reevaluate the claims it previously denied. If any claims remain denied, the RO will issue a Statement of the Case (SOC), which provides a more detailed explanation of the reasons and bases for the RO’s denial. To perfect the appeal, the veteran must file a Substantive Appeal (VA Form 9) within 60 days of the mailing date of the SOC.

The VA Form 9 presents the veteran with an opportunity to identify any specific factual or legal errors contained in the SOC and to elect to have a hearing before a member of the Board of Veterans’ Appeals (Board). Once the appeal is certified by the RO, the veteran’s case is transferred to the Board where a Veterans Law Judge will conduct a de novo review of all the evidence and make a decision on each claim. If the Board denies any of the claims, the veteran can file (1) a motion for the Board to reconsider (no time limit to file this motion); (2) a motion for the Board to review based on clear and unmistakable error (no time limit to file this motion); or (3) a Notice of Appeal with the US Court of Appeals for Veterans Claims (CAVC) (must be filed within 120 days of the date of the Board decision).

The proceedings at CAVC are more formal and adversarial than those at the RO or Board. Unlike proceedings before the RO or Board, the veteran is not able to submit any new evidence once a claim goes to CAVC. Both the veteran and VA must submit formal briefs to CAVC if the parties cannot reach an agreement on the claims. Subsequently, CAVC conducts its review of the record and the parties’ briefs. The Board’s factual findings are reviewed under the “clearly erroneous” standard of review. Non-factual determinations are reviewed under an “arbitrary and capricious” standard of review and issues of law are reviewed de novo. If CAVC affirms the Board decision or dismisses a veteran’s appeal, the veteran may file a motion for reconsideration within 21 days of the decision. Thereafter, a veteran may file a Notice of Appeal to the US Court of Appeals for the Federal Circuit within 60 days of the date of the decision on the motion for reconsideration.

There is a need for dedicated and effective advocates to assist veterans through the VA process for securing disability compensation. There are endless ways to leverage your time and talent (and treasure) to assist our nation’s veterans.

  • Individual attorneys can attain VA accreditation by completing the Application for Accreditation as a Claims Agent or Attorney (VA Form 21a) and represent veterans before the VA.
  • Dozens of law schools across the country offer veterans law clinics that specifically focus on disability benefits at each level and oftentimes present opportunities for attorneys to offer pro bono services.
  • The Veterans Consortium Pro Bono Program specifically focuses on providing legal representation to veterans with claims in front of CAVC.
  • Many local civic organizations, including churches and veterans service organizations, offer periodic veterans clinics where veterans seek legal advice on their claims for disability benefits.
  • Finally, a number of law firms host in-house pro bono programs aimed at providing legal services to veterans across a number of areas, including disability compensation.

While there is a sizable need for legal assistance for those undergoing the VA disability compensation process, there are also other ways to put your legal talents to use for this population. The ABA, under Immediate Past ABA President Linda Klein, recently launched VetLex, a platform designed to match veterans in need of legal services with attorneys willing to provide pro bono services. For more information on what the ABA is doing to honor our veterans, visit the ABA Veterans Legal Services Initiative.