Under the federal government’s benefits system, a veteran, a veteran’s dependents or a veteran’s survivors are required to submit a plausible claim for an entitlement to VA benefits.
There are many types of applications for benefits that can be filed with the VA. The “VA” means the Department of Veterans Affairs. A veteran who has a service-connected disability can apply for compensation benefits. Compensation is a monthly income benefit paid by the federal government for illnesses, injuries and aggravations of medical conditions due to serving in the armed forces. This is a tax-free benefit for a veteran who is injured in the service due while on active duty. There are special benefits such as car allowances, housing allowances and clothing allowances particularly for veterans with severe disabilities.
There are other benefits available to service members and their families. For example, one can file for healthcare benefits. The VA healthcare system is the largest single provider of healthcare in the United States. And, regardless of the negative publicity in the national news, there are numerous surveys which document that the VA system is one of the best providers of health care. Not all veterans can receive care through the VA system since there is a program in place which categorizes veterans needing VA healthcare services. Eligibility requires either a service-connected rating, extraordinary injury cases or low income & low assets.
Cash funds are available for burial services for veterans with disability ratings or who received a VA pension benefit or if a veteran died while under VA medical care. Also, in situations where death was not service-connected, funds are available for a burial plot & funeral expenses. Veterans can receive free burial in state VA cemeteries.
There are many VA programs for long term care costs. For example, if a veteran’s disabilities necessitate that one needs to be in a nursing home or assisted living facility, there is an enrollment application in which preferences is given to a priority list of medical conditions. Many state run nursing homes have slots for veterans. There are some private nursing homes which may provide assisted living care for veterans.
There are benefits available from the VA for dependents. Dependents Indemnity Compensation is payable to eligible survivors of a military service member who died on active duty or whose death after service resulted from a service-connected illness or injury.
Claim Application Process
A claim must be in writing. A claim may be submitted at any one of the Regional Offices of the Department of VA (“RO”). Every state has at least one RO. There are RO in Puerto Rico and the Philippines. There is an office in Washington, D.C. for those individuals who live outside of the United States.
Once a claim has been submitted to a RO, the RO is required to render a decision. The decision should only be made after a fully and sympathetically developed consideration of the evidence. The veteran will receive a written notice of the decision of the RO. This notification of action will only inform the veteran that the claim has been granted or denied.
What to Do if Your Claim is Denied
When a veteran wants to appeal a full or partial denial of benefits, a Notice of Disagreement (known as NOD) is required to be submitted by the veteran to the Regional Office. There is no required form for a Notice of Disagreement. The Notice of Disagreement must simply express disagreement with the denial of benefits. Upon receipt of a Notice of Disagreement the Regional Office must prepare a Statement of the Case.
Statement of the Case
A Statement of the Case (SOC) is required by law to explain to the veteran the reason for the denial of benefits. The SOC should also provide notice to the veteran of the pertinent or controlling statutes and regulations relied upon by the Agency to support the decision to deny benefits. The SOC will inform the veteran that to perfect an appeal of a denial of benefits, the veteran must execute and submit a VA Form 9. This form will be included in the mailing from the RO with the SOC.
Perfecting the Appeal
In order to perfect an appeal for review of a denial of benefits by a RO, the veteran must not only file a Notice of Disagreement (NOD), but must timely file a VA Form 9. This is a two-step appeal process. Completing the first step and omitting the second step will not result in a perfected appeal. The VA Form 9 must be filed either within 60 days of the receipt of the SOC, or within one year of the Notice of Action by the RO denying the claim, whichever is later.
Actions by the Board of Veterans Appeals
Once a veteran has perfected an appeal, the claims folder is transferred to the Board of Veterans’ Appeals (BVA) in Washington, D.C. The BVA is the final administrative process before going to Court. The Board may take anyone of four different actions in a veteran’s appeal.
First, the Board may affirm the decision of the RO. This would be an adverse decision to the veteran and would allow the veteran to appeal to Court.
Second, the Board may reverse a decision of the RO and grant the benefits sought by the veteran. In this circumstance, the decision would be favorable and there would be no basis for an appeal to Court.
Third, the Board may remand the case for further development to the Agency of Original Jurisdiction, the RO. A remand is not an adverse decision. A remand merely continues the administrative appeal by returning a case to the Agency for further proceedings.
Once the RO receives a remand, the RO is required to complete the instructions or directions for further development provided by the Boar. The length of time this process takes is dependent on the nature of the remand instructions. In the event that the RO confirms the prior denial, The RO will issue a Supplemental Statement of the Case. Following the receipt of a Supplemental Statement of the Case, the veteran’s claims folder should be returned to the Board to complete appellate review. Upon return to the Board, the Board still has all four options available as though this was an original appeal.
The final option for the Board is what is called a referral. A case is referred back to the Agency when the Board feels that an issue or a claim which should have been developed was not, and the Board directs the RO to decide that issue and give the veteran notice of that decision. In this circumstance, the veteran is required to file a Notice of Disagreement with such ratings action. Another circumstance in which a referral would be appropriate is when the Board failed to include in the Statement of Case a claim or issue raised by the veteran in the NOD. In such a situation, a referral back to the Agency of Original Jurisdiction would be issued directing the RO to issue a SOC on the omitted claim or issue.
A veteran has 120 days from the date stamped on the adverse BVA decision to file a Notice of Appeal with the U.S. Court of Appeals for Veterans Claims (CAVC). A Notice of appeal which is filed after 120 days will be accepted by the Court but will be ultimately challenged by the VA’s General Counsel, and in all likelihood the appeal will be dismissed due to the untimely filing of the Notice of Appeal.
Reconsideration of the Board of Veterans’ Appeals Decision
VA regulations provide that a veteran at any time may ask or seek Reconsideration by the Board of Veterans’ Appeals of any prior adverse decision. In the context of a current decision, if the veteran files a Motion for Reconsideration within 120 days of the adverse decision, then the time for filing a Notice of Appeal to court has been tolled. Tolled means it is stopped or suspended. The time for filing a Notice of Appeal when a Motion for Reconsideration has been filed within 120 days of an adverse Board decision suspends the time for filing a Notice of Appeal in Court until the Board has acted on the Motion for Reconsideration. Upon receipt of the decision on the Motion for Reconsideration, the date file-stamped on the Board’s letter denying the Motion restarts the 120-day time period. This means a veteran has 120 days after a decision denying a Motion for Reconsideration to file an appeal with the Court.
Although there is no time limit for filing a Motion for Reconsideration, any Motion for Reconsideration filed after 120 days, while it will be accepted and decided by the Board, does not toll the time for filing a Notice of Appeal. This is a common mistake and misunderstanding which many pro se veterans make. The BVA’s Notice of Appellate Rights is somewhat confusing and misleading in this regard. A veteran should consult with a veterans’ law practitioner after receiving any decision from the BVA.