If your VA claim is denied, you may feel frustrated and confused. Don’t worry; you aren’t alone. Thousands of veterans find themselves in this situation every year.
The good news is that there are three options to overturn the VA’s decision available to you based on the specific details of your VA claim.
This article will define these three options and explain when each should be used. Remember that you only have a certain amount of time to choose one of these options, so don’t delay!
- Why should you appeal a VA claim decision if your VA claim is denied?
- The Appeals Modernization Act
- Option 1: Higher Level Review
- Option 2: Supplemental Claim
- Option 3: Board of Veterans’ Appeals
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Why should you appeal a VA claim decision if your VA claim is denied?
You might want to appeal a VA claim decision for a few different reasons. Your claim could have been denied outright, or you may have received a lower disability compensation rating than you deserve.
It’s well within your right as a veteran to appeal any decision the VA makes.
The VA may have made a mistake in processing your claim or had outdated or incorrect information. Perhaps you have new evidence that wasn’t available when you filed your original claim. You may not have submitted enough proof that you have a diagnosed disability or enough proof that your disability is negatively impacting your ability to function.
If any of these reasons apply, you should consider appealing your VA claim decision.
Remember, to file a winning VA claim; you need to prove three elements:
1. A medical diagnosis of a disability condition. This can be done in Service Treatment Records (STRs), VA medical files, or any other private records, but it must be recorded somewhere in a medical record.
2. A medical nexus linking your active-duty military service to your disability. You must show that your disability condition was caused or made worse by service or aggravated by another service-connected condition already rated at least 0%.
3. The severity of the current symptoms of your disability condition. How severe are your symptoms, and how badly is your disability affecting your job, social life, and personal activities?
Many veterans file a claim without realizing these three essential parts of their claim needed to be successful and find out about them after the fact once they’ve already been denied. If you’re missing any of these elements and aren’t awarded the rating you deserve, you can appeal the VA’s decision.
What are my options for appealing a VA claim decision?
Three main options or lanes are available to veterans who want the VA to review their VA claim decision: Higher Level Review, Supplemental Claim, or Board of Veterans’ Appeals. However, these are somewhat new options available to veterans. Below, we discuss recent changes to the process.
The Appeals Modernization Act
In 2019, the VA overhauled its appeal process with the Appeals Modernization Act (AMA). This needed overhaul has sped up the appeals process. In many cases, the review process is more efficient than the legacy appeals process while maintaining your effective date.
Now, there are two different types of appeals: legacy appeals and AMA appeals.
The VA was severely backlogged with appeal cases before the update, with an all-time high of 472,000 veterans waiting for appeal decisions in 2017. The goal was to clear out the appeals backlog by 2022; however, the pandemic slowed that process down. Now, the VA is estimating all legacy appeals will be decided and cleared out of the queue by 2023.
If you received a decision you wanted to appeal dated before February 19, 2019, you would fall under the legacy appeals process. However, you can no longer request a decision review under the legacy process. You can still check the status of a legacy appeal here.
All new appeals are now completed in the new AMA review process. When appealing a VA claim decision, you now have three options: a higher-level review, a supplemental claim, or an appeal to the Board of Veterans’ Appeals.
If you’re not sure which one is right for you, don’t worry! We’ll explain each option in detail below.
Option 1: Higher Level Review
A Higher Level Review (HLR) is one of the easiest reviews you can request. When you file for an HLR, an experienced Decision Review Officer (who wasn’t involved in the original decision) takes a fresh look at your VA claim.
This is a good option if you think the VA made a mistake in its decision. The big factor is that your regional VA office is still involved in the decision-making.
Many veterans want a judge to review their case, assuming that the judge will give them a fair review. While this can be true, the time it takes the Board of Veterans’ Appeals to review cases is much longer and more drawn out than going back to the regional office for an HLR.
Reasons to Choose a Higher Level Review
If the VA made a mistake in deciding on your VA disability claim, a Higher Level Review might be the best option for you. This should not be considered the weighing of evidence, which a judge would better decide.
Time is the biggest factor when choosing a Higher Level Review. HLRs are generally faster than an appeal to a judge.
Don’t choose an HLR if you have new evidence to submit, as no new evidence will be considered.
Examples of when to file a Higher Level Review
The VA made a processing error. An example is if you filed an intent to file a claim within one year of filing and the VA gives you an incorrect effective date in your rating decision.
If the VA failed to consider evidence. On your decision rating letter, the VA details the reason for their decision. If they don’t discuss specific evidence you submitted in your claim, you can file an HLR to request consideration of that evidence (based on an erroneous decision).
Inadequate reasons and basis. The rating decision doesn’t tell much or consider the evidence you provided. Make the VA explain why they denied your claim, specifically.
Your rating doesn’t match your evidence. If you’re rating decision letter gives you a lower rating than what matches your symptoms in the VA’s Schedule for Rating Disabilities guidance, you can request an HLR.
Exam: You won’t be scheduled for an additional exam when you request a Higher Level Review.
Filing Timing: You have up to one year from the date of the original rating decision to request an HLR.
Average Wait Time: The VA’s goal is to process all HLR appeals within four months.
What to do next: If you’re unhappy with the result of your HLR decision, you can either file a Supplemental Claim or appeal to the Board of Veterans Affairs.
Learn how to file in our post on the VA HLR.
Option 2: Supplemental Claim
The second option is to file a supplemental claim. This is a good option if new and relevant evidence has surfaced since you filed your original claim. You can file a Supplemental Claim for one or more issues decided by the VA, but you must list them when you file.
This claim is also handled by your regional VA office, just like a Higher Level Review.
The first step is to know what’s already in your C-File (the VA’s file on you with all of your evidence and claim history). You can read our post to learn about requesting a copy of your C-File.
Examples of new and relevant evidence include:
- A new independent medical opinion
- Adding in old evidence not already in your C-File
- New tests or medical exams
Examples of when to file a Supplemental Claim
A previous denial. You were previously denied a claim and wish to re-open a claim based on new and relevant evidence. (This would reset your effective date to when you re-open the claim, not when you initially filed the original claim.)
Your rating doesn’t match your symptoms. You could provide additional medical evidence to support that your symptoms are more severe than your initial rating decision from the VA.
Your BVA appeal was denied. If you filed an appeal with the Board of Veterans’ Appeals and the BVA denied your appeal, you can continue the claim by filing new and relevant evidence with a Supplemental Claim.
You must submit any new evidence you want to be considered as part of your supplemental claim.
Exam: Sometimes, the VA will request an additional exam when you file a Supplemental Claim, but not always.
Filing Timing: You have up to one year from the original decision date to file a Supplemental Claim if you wish to keep the original effective date. You can still file a Supplemental Claim at any time.
Average Wait Time: The VA’s goal is to process Supplemental Claims within 4 to 5 months (or 125 days) on average from the time of filing.
What to do next: If you’re unhappy with the result of your Supplemental Claim, you can either file a Higher-Level Review or appeal to the Board of Veterans’ Appeals.
A supplemental claim is a great option when you receive an unfavorable decision from the VA and have new evidence to submit. By submitting a Supplemental Claim within the one-year timeframe of the VA decision, you keep your initial effective date and will receive back pay should your rating be increased.
Read our post on how to file a Supplemental Claim to learn more.
Option 3: Board of Veterans’ Appeals
The third and final option is to appeal directly to the Board of Veterans’ Appeals. When you file an appeal with the BVA, you’re putting your appeal on a slower track to get to a judge compared to the first two lanes.
However, a trained Veterans’ Law Judge will review your case and can weigh the evidence in your claim with more latitude than the other two lanes. You can use one of the first two lanes for a faster answer and then continue filing with a judge if you don’t get the desired resolution.
When you file an appeal with the Board of Veterans’ Appeals, you must file a Notice of Disagreement with VA Form 10182.
With this option, you have three options (or dockets). They’re similar to the HLR and supplemental claim reviews, except they’re presided over by a Veterans’ Law Judge. The dockets are:
- A direct docket: A review of all the current evidence by a VLJ (similar to a Higher Level Review)
- An evidence docket: A review of your file plus additional evidence by a VLJ (similar to a Supplemental Claim)
- A hearing docket: The opportunity to present your case directly to a VLJ during a scheduled hearing and introduce more evidence during and after the hearing. Hearing options are both in-person and virtual.
Examples of when to file an appeal with the Board of Veterans’ Appeals
Discussion with the VA directly or a VLJ review. A hearing may be the first time that many veterans have been able to communicate directly with someone from the VA and argue their case. Many veterans may want to talk to a judge face-to-face. If you don’t choose the hearing route, your case is still being reviewed outside of your regional VA office by a trained lawyer.
Examples of when not to file a BVA appeal are typically based on time requirements. If there is an immediate financial crisis or terminal illness with a veteran, other faster methods may be a better option.
Exam: Whether or not you’re scheduled for an additional VA exam depends on your chosen lane.
Filing Timing: You have up to one year from the date of the original rating decision to request a Board appeal.
Average Wait Time: The VA’s goal is to process all BVA appeals within one year of filing the appeal.
What to do next: If you’re unhappy with the result of your BVA decision, you can submit new and relevant evidence and file a Supplemental Claim. You can also file an appeal at the next level up within 120 days of the BVA decision with the U.S. Court of Appeals for Veterans Claims (CAVC).
Read this post to learn more about how to file an appeal with the Board of Veterans’ Appeals and how to choose a lane.
NEED MORE ASSISTANCE?
Most veterans are underrated for their disabilities and therefore not getting the compensation they’re due. At VA Claims Insider, we help you understand and take control of the claims process, so you can get the rating and compensation you’re owed by law.
Our process takes the guesswork out of filing a VA disability claim and supports you every step of the way in building a fully-developed claim (FDC)—so you can increase your rating fast!
If you’ve filed your VA disability claim and have been denied or have received a low rating—or you’re unsure how to get started—reach out to us! Take advantage of a FREE VA Claim Discovery Call. Learn what you’ve been missing—so you can FINALLY get the disability rating and compensation you deserve!
We’ve supported more than 20,000 veterans to win their claims and increase their ratings. NOW IT’S YOUR TURN.
Trisha Penrod is a former active-duty Air Force officer. As an Intelligence Officer, she led teams of analysts to apply advanced analytic skills to identify, assess, and report potential threats to U.S. forces.
Trisha attended the U.S. Air Force Academy and holds an MBA from Webster University. After receiving an honorable discharge in 2018, Trisha worked as a growth marketer and utilizes her analytic skills to help others accomplish their business goals.