VA Notice of Disagreement: Legacy Appeals and Appeal Reform
Category: Veterans Disability Law
VA Notice of Disagreement: VA NOD Appeals and VA Statement of Case (SOC)
If the Department of Veterans Affairs (VA) makes a decision that the veteran deems unfavorable, the veteran can send a notice of disagreement (NOD) to the Board of Veterans’ Appeals stating what their issue with the decision is and the specifics with which they disagree. NODs are a necessary tool for veterans who believe VA made a mistake when determining their VA disability rating. There are many different aspects of NODs that can be made easier with the help of an experienced VA disability lawyer.
What is a VA Notice of Disagreement (NOD)?
A NOD is an official statement informing VA that you disagree with the rating decision for disability compensation that they assigned to your original claim. If VA denies your claim or awards you with less compensation than you deserve, you can file a NOD to begin the appeal process.
The information required in a NOD includes the specific medical condition in question and the grounds on which you disagree with VA’s decision. There are three parts of a disability claim that you can disagree with using a VA Notice of Disagreement:
- Effective Date
- Disability Evaluation
- Service Connection
A VA disability lawyer can assist you in building a case catered to the portion you disagree with.
Determining Your VA NOD Effective Date
One important VA disability claim concept is the effective date. The effective date is the specific calendar date your pay starts from. Typically, this is the same date as to when you initially filed your claim. When you file a claim within a year of leaving the service, your effective date should be the day after your discharge.
Sometimes VA will assign you an effective date that is incorrect. Whether it is a mistake or they believe you should be paid from a different date—like the date of a medical or compensation and pension (C&P) examination—you can file a NOD to challenge the decision.
Although you will not be paid until your claim is approved, your effective date dictates the number of retroactive benefits you will receive. A VA disability lawyer can help you dispute an unfavorable VA decision and receive the compensation you deserve.
Disputing Your VA Disability Rating
The most commonly disputed part of a VA decision is the disability rating. VA uses a fixed schedule of ratings to assign percentages based on the severity of your symptoms and the medical care required for treatment. This schedule of ratings does not always accurately capture a disability or account for the accommodations a veteran has to make to their daily life.
Filing a NOD for disability evaluation involves proving that a medical condition is more severe than what VA initially decided. This can be done with medical records, service records, opinions from medical professionals, buddy statements, or lay statements.
Proving VA Service Connection
One of the primary requirements for filing a VA disability claim is connecting the medical condition to your time in the service. If you cannot prove that your disability was caused or aggravated by your time in the military, VA will not consider your claim. While some conditions are assumed to be service-connected under the VA presumptive list of conditions, the majority of conditions require a medical nexus of some sort that connects an in-service event to your current diagnosis.
If VA decides that your medical nexus does not form a strong enough connection between your condition and the event, you can file a NOD to provide more evidence. Sometimes veterans will leave out key bits of information because they don’t understand what VA is looking for. Filing a VA NOD on the basis of service connection is most commonly used for secondary conditions that resulted from primary injuries. VA requires more proof for secondary conditions, as they are further removed from military service and could be caused by a range of other factors. Employing a VA lawyer to help build your case increases the chances of receiving a higher rating for your secondary condition.
Who Is Eligible for a VA Notice of Disagreement?
A VA NOD can only be filled out by veterans with a current VA decision. Until the VA has sent you a letter responding to your initial VA disability claim, you have no grounds to file a NOD. You must also see a legitimate issue with VA’s decision. Perhaps you notice VA forgot to take into consideration the bilateral factor or a secondary condition on your initial decision—you can file a NOD to fix that issue. Your NOD will not be approved if you desire a higher rating but all the evidence and reasoning have already been accurately presented.
What Happens After You Submit a VA NOD?
In the Legacy Appeals System, once the NOD is submitted, it can be reviewed through the traditional VA Notice of Disagreement process, by a Decision Review Officer (DRO), or at a formal hearing.
The traditional review process is completed by the same adjudicator who originally issued the claim denial. Providing the same individual with more evidence allows them to get a closer look at the case and make a more accurate decision.
The DRO process involves a senior-level VA employee specifically trained to handle post-decision appeals. The DRO will consider new evidence while reviewing the original claim and will assign a new rating based on their opinion. VA will only accept this rating if it is more favorable to the veteran.
The last option available to veterans is to speak directly with the reviewing officer at a hearing. After the hearing, the DRO will either issue a Statement of the Case (SOC), grant the appeal, or issue a SOC on some issues and grant the others.
What Is a VA Statement of Case (SOC)?
Similar to an initial rating decision, the SOC is a description of the decision and why it was made. The SOC includes:
- A list of issues being decided in the claim
- Instructions about the appeals process
- The VA laws and regulations which apply to the claim
- A summary of the evidence presented
- The decision and reasoning behind each individual issue
If your decision is not initially granted, the SOC can help you prepare a more effective appeal. However, you only have 60 days after the SOC cover letter to fill out and submit a VA Form 9 for substantive appeal. If you do not respond to the SOC in this time period, the appeal will likely be closed, making the initial decision final.
NOD Appeals Reform
With new legislation being released for VA disability appeals, veterans should be paying close attention to the changes. New laws under the Appeals Modernization Act (AMA) allow veteran appeals to skip the second level of review at the Regional Office that would normally be required. Instead, claims can be reviewed in one of three different ways. They can be reviewed by the same individual with added supplemental evidence, sent with no new evidence to a higher level review officer, or filed directly to the Board of Veterans’ Appeals (BVA).
AMA requires the Board to notify the veteran if their NOD is unclear or incomplete, thus requesting clarification. Similar to a SOC, if further clarification is requested by VA, the veteran has 60 days to respond with the required information. AMA also allows veterans to file multiple NODs during the year after their initial claim if the decision is still pending.
How To File a VA Disagreement of Notice With the VA
A VA NOD must be filed within one calendar year of receiving the denial decision letter. Prior to 2013, there was no standardized form for filing a NOD. To file, veterans either used the general VA Form for Statement in Support of Claim or just filed a disagreement letter. From February 2013 to February 2019, veterans used VA Form 21-0958, Notice of Disagreement, to file a NOD.
Under AMA, Form 21-0958 and the Board Appeal Process have been replaced by three separate forms. Each one represents a different lane for decision review. Higher Level Review and Supplemental Claims allow veterans to have their decision re-examined by a different examiner or to have additional information taken into account. The third lane, Notice of Disagreement, requires veterans to fill out VA Form 10182—Decision Review Request: Board Appeal. This form streamlines the NOD process, allowing veterans to appeal all of the previously decided issues or just some of them. It is important to note that only issues listed on the VA Form 10182 Notice of Disagreement will be considered on appeal.
Appeals reform makes it less complicated and less arduous to file for a case review. While some of the options from the Legacy Appeals System are still available—such as appealing directly to the U.S. Court of Appeals for Veterans Claims (CAVC)—the new lanes provide easier alternatives for individuals with a simpler case. Including as much evidence as possible with your VA Notice of Disagreement form helps the Board make the most accurate decision possible.
VA Notice of Disagreement Timeline
A VA NOD must be filed within one year of a VA decision letter. This means one year from the date it’s mailed, not one year from the date you received it. Waiting until the deadline is near can be risky if there is another problem with the NOD or it relies on information that takes a while to gather. It is recommended that you review the decision letter as soon as you receive it and determine whether or not a NOD should be filed.
How Long Does a VA Notice of Disagreement Take?
Depending on the amount of evidence you provide upfront, the time it takes to review a NOD can be as short as a few months or longer than a year. The more comprehensive the data VA has, the quicker they will be able to process your request. The length of time will typically depend on which review lane you choose. Under AMA, VA aims to fulfill all appeals within 120 days, but it will most likely happen sooner than that. If you choose to appeal to the CAVC or directly to the BVA, you may be looking at longer waiting periods, as there are fewer locations available and a higher backlog of cases.
Choosing an Appeal Process
Deciding which appeal lane to pursue can be a difficult process. Understanding what your claim lacks and where its strengths are is an essential part of developing a strong NOD.
If you believe VA made a mistake in their initial rating decision, you may be able to pursue further compensation.
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