The VA Denied My Disability Claim. How Do I Appeal the Decision?
Advice on how to appeal a denial of veterans disability benefits from the VA.
If you've received a denial letter and ratings decision from the Department of Veterans Affairs (VA), don't be discouraged. It is common for initial claims for veterans disability to be denied, and you can appeal. To appeal, you will need to file a Notice of Disagreement (NOD) with the VA. Here's some advice on filing an NOD and requesting an appeal.
Deadline for Filing a Veterans' Appeal
You have one year to file the notice of disagreement. Note that the NOD must be filed within one year from the date the decision was sent to you, not the date you received it.
What Form to Use to Appeal
The VA does not have an official NOD form, but typically VA Form 21-4138, Statement in Support of Claim, is used to file an NOD. You can also write a letter to the VA to state that you disagree with the decision denying you benefits.
What Not to Include in the NOD
It is frustrating to receive a denial from the VA, and you may be tempted to point out to the agency why you feel the decision is wrong. Be cautious, however. It is best not to go into any detail about why you disagree with the decision in the NOD. You will have a chance to tell the VA why you think the decision is wrong, but the NOD is not the place to do that.
The purpose of the NOD is to preserve your right to appeal all of the errors in the VA's decision denying you benefits. If you get into specifics, this will limit your right to appeal issues that you haven’t mentioned or may not even be aware of. Specifically, if you neglect to mention an issue in the NOD, to have those issues reconsidered in the appeal, you will have to produce new material evidence or show that the VA made a clear and unmistakable legal error. To avoid the possibility of having to start over by filing a brand new claim, keep the NOD general.
What to State in Your NOD
Make your NOD statement simple by stating that you disagree with all of the decisions in the VA denial letter and ratings decision and that you wish to appeal those decisions.
- Write notice of disagreement at the top of Form 21-4138 or your letter.
- Include the date of the denial letter and ratings decision.
- State that you disagree with the denial letter and ratings decision.
- State that you intend to appeal.
If you decide to list specific decisions that you disagree with, make sure you tell the VA it isn’t an exhaustive list. State that your disagreement includes those issues you’ve listed but is not limited to them, and that you disagree with all of the decisions in the VA denial letter and ratings decision.
Select the Type of Appeal
You will be asked choose between an appeal to a decision review officer (DRO) at your regional office or an appeal to the Board of Veterans Appeals (BVA). In addition, you can ask for a DRO to review your file and make a decision, or you can request a personal hearing before the DRO.
If a DRO denies your claim, you can still appeal to the BVA. The advantage to requesting a DRO review is that a decision will be made much more quickly. The disadvantage is that if the DRO doesn’t change the decision, you will have increased the time you have to wait for a BVA review. On the other hand, the DRO review gives you an extra chance to get the decision changed.
Where to File the NOD
Make sure you sign the NOD and keep a copy for your files. File the NOD at the regional VA office that sent you the denial letter, unless you have been told your file has been moved to a different office. Send it certified mail, return receipt requested, so you will have proof that you met the filing deadline.
What Happens Next?
BVA. If you requested a BVA appeal, the VA will prepare a summary of the decision to deny you benefits and send it to you. The agency will not do this quickly; it will take several months. When you receive this summary – called a statement of the case (SOC) – you must file your actual appeal to the BVA within 60 days of the date on the SOC. You are required to use VA Form 9, Appeal to Board of Veterans Appeals to file your BVA appeal. You can find Form VA9 at www.va.gov/vaforms.
After you have filed Form 9, the VA regional office will transfer your file to the BVA. Again, it will take the VA several months to transfer your file. You will know the BVA has received your file when the BVA sends you a letter instructing you what to do next.
DRO. If you requested a DRO review, the VA will ask you to provide more information about the issues you would like the DRO to review. If you requested a DRO hearing, it will be scheduled after you provide the additional information.
If the DRO denies your claim, you will receive an SOC and will need to file VA Form 9 to continue your appeal to the BVA.
Filling Out VA Form 9
VA Form 9 is much more complicated to fill out than an NOD, so you may need the help of a disability attorney after you receive an SOC (statement of the case).