How to Appeal with the VA (Three Appeals Tracks) - VA Made Easy Podcast (Video)

 Posted on September 06, 2023 in Uncategorized

Your VA Claim got denied? There are three appeals tracks under the Appeals Modernization Act. Find out whether to use the supplemental claims, go to the higher review, or all the way to the Board of Veterans' Appeals. Ed also touches on the split appeal and when is the right time to use that instead.

Audio only version:

VA forms from this episode:

To provide new evidence after denial use Form 20-0995 https://www.vba.va.gov/pubs/forms/vba-20-0995-are.pdf
To apply for VA benefits for a new condition use Form 20-526EZ https://www.vba.va.gov/pubs/forms/vba-21-526ez-are.pdf
To initiate higher level review use Form 20-0996 https://www.va.gov/find-forms/about-form-20-0996/
To initiate a Veterans' Board Appeal use Form 10182 https://www.va.gov/find-forms/about-form-10182/

Full Transcript:

Ed Farmer [00:00:00]:

Hey. Welcome back to VA made Easy. I'm Ed Farmer. Today we're going to talk about the three appeals track of the Appeals Modernization Act. I'm going to discuss the advantages and disadvantages of each and give you examples of when you should use each one. So let's get going. Hi, I'm Edward Farmer. I'm a disabled veteran and a VA disability appeals attorney.

Ed Farmer [00:00:24]:

I'm crane this podcast, VA Claims Made Easy to help veterans navigate their own way through the VA disability system. The first one is called the supplemental claims track. To initiate this claim, you're going to use VA form 29 nine five. Now, guys, I'm not going to go into detail about how to fill this form out in this video, but if you need help with that, feel free to schedule a consultation with me. So the supplemental claims track requires you to submit new and relevant evidence. New, meaning it hasn't been considered before. Relevant, meaning it goes to prove or disprove your claim. Now, I've been seeing the VA reject supplemental claims recently, stating that the evidence submitted is not new and material.

Ed Farmer [00:01:19]:

Now, new and material is a higher standard than new and relevant. So if you see that, please call the VA out on that. Submit another supplemental appeal informing them that the correct standard is new and relevant and not new immaterial. So what are some advantages and disadvantages of the supplemental claims track? One, it's much quicker than filing an appeal with the Board of Veterans Appeals. The VA has 125 day goal to respond to the supplemental claims. In my practice, that's more or less right. They're right about around 125 days. Next, they allow you to submit new evidence as well as new theories of entitlement.

Ed Farmer [00:02:04]:

And you could use a supplemental claim track. If there's a change in the law disadvantages, it's decided by less experienced VA employees, some of which may be the same people who denied you in the first. So let's go over some examples of when the best time use a supplemental claim is. So supplemental claim allows you to reopen claims over a year. So let's say over a year ago, you were denied PTSD for lack of proof of the in service stressor. You have since gained new and relevant evidence helping prove that in service stressor. That's a good time to file supplemental claim. In fact, that would be your only option, is to file supplemental claim for a disability you filed more than a year ago.

Ed Farmer [00:03:00]:

You're denied service connection for sinusitis related to burn pits three years ago. And since then, the Pact Act has been filed. This is another good use to reopen your claim using the supplemental claim track. It allows you to reopen based on a change in the law you filed more than one year ago. But now you have a new theory of entitlement to service connection. So let's say you filed for sleep apnea three years ago, and you claimed it related to your PTSD. But now you've gained some buddy statements who said you have sleep apnea symptoms in service, and you want the VA to consider that sleep apnea directly to service. That's a good use of the supplemental claim track.

Ed Farmer [00:03:43]:

Within the last year, you're denied PTSD due to a lack of diagnosis, but now you've acquired a diagnosis. Use supplemental claim track to submit that new diagnosis. Note, guys, if you file supplemental claim within one year of being denied, your effective date should go all the way back to whenever you've opened or reopened that claim. So back to your intent to file or back to your 21 five two six Ez. Within the last year, you received a decision where you disagree with the PTSD rating. You've acquired some statements indicating that your rating should be 50% and not 10%. That's a good time to use a supplemental claim track. Now, guys.

Ed Farmer [00:04:29]:

Note if you received the rating that you disagreed with more than one year ago, do not use a supplemental claim track. The proper procedure then is to use VA form 21 five two six Ez could only use supplemental claim track for a rating. If you receive that rating within the last one year, that's the supplemental claim track. The second option, your second appeals track, is the higher level review. Now, the higher level review is a closed record. That means that you cannot submit any more evidence. The higher level reviewer, who tends to be a more experienced VA employee, has to decide the case based on the evidence already in the record. Now, you could submit argument as to why you think the decision was wrong, but you cannot submit new evidence.

Ed Farmer [00:05:21]:

The higher level reviewer is supposed to take a fresh look at the record. This is called a de novo review. He's not supposed to give any deference to the last adjudicator. In reality, this almost never happens. In fact, many times they use the last adjudicator's decision to issue their higher level review decision. If you want to initiate this process, you use VA form 29 nine six. Some advantages of the higher level review process is, one, you could ask for an informal conference with the higher level reviewer, give you a chance to explain your side of things, discuss the case with the higher level reviewer. However, you're not able to give testimony at that time because, once again, it's not meant for new evidence, and that would be considered new evidence.

Ed Farmer [00:06:15]:

Another advantage is it's still quicker than the board. Again, you're looking at roughly 125 days to receive a decision, although I have some cases at the higher level review that have been pending more than 125 days. But as I'll explain in a minute, that's still much quicker than you could get at the board disadvantage. As we discussed, you can't submit new evidence. And another disadvantage is you cannot submit a higher level review on a higher level review decision. So if you already asked for a higher level review, you can't ask for another higher level review. You would have to ask for a supplemental or go to the board at that time. What kind of cases are best for the higher level review track? These are cases where there's an obvious error in fact or obvious error in law.

Ed Farmer [00:07:04]:

So for example, say you applied for service connection for a knee, and the VA said, well, there's no evidence that you had a knee injury in service. And you say, yes there is, dummies. It's in my service treatment records. And you point that out to the higher level reviewer. That's a good option to use higher level review. Another option is if they make a mistake in law. So you apply for sinusitis related to burn pits, and the decision says there's no link between your sinusitis and burn pits. And you say, hey guys, at the regional office there's this thing called Pact Act, and sinusitis is a presumptive condition.

Ed Farmer [00:07:48]:

That's a good use of the higher level review option. Lastly, what I use higher level review for are effective date issues. Guys, check your effective dates. Every decision you get with VA in 90% of my decisions messes up the effective date. They set it from the date of the exam, or they set it from the day you filed the appeal. They don't set it from the day you first opened or your intent to file. So that's a higher level review, guys. Great for obvious errors in fact or law.

Ed Farmer [00:08:23]:

The third option is to appeal to the Board of Veterans Appeals. This is a group of judges who sit in Washington DC. They call themselves veteran law judges. They're not truly judges, they're just lawyers like I am. But they do have a lot more experience with VA law. And I'll explain what the advantages and disadvantages of going to the board are in just a minute. But let's first discuss the three sub options under a board appeal. So if you want to initiate a board appeal, you're going to use VA Form 10 118.

Ed Farmer [00:09:00]:

That form gives you three sub options. One, you could do what's called the direct review, and this is very similar to a higher level review in that the record is closed. You cannot submit new evidence at that time. The judge reviews the record and he bases a decision based on that. This is the quickest lane under the board, but still lengthy. The next option is a supplemental evidence option, so you can submit new evidence to the board within 90 days of filing. That 101. Eightynchion takes a little bit longer in direct review, but not as long as the third sub option, which is the hearing option.

Ed Farmer [00:09:37]:

This allows you to have a hearing with the veteran law judge. Explain your position, give some testimony, which may be great in some cases, especially guys that are trying to prove a stressful event happened in service. The hearing option also allows you to submit new evidence. However, let's talk about the advantages and disadvantages of the board. One advantage and the reason I go to the board is the judges tend to better understand VA law. You're going to get higher quality decisions out of the board than you are the regional office. They are considering all the evidence. They're discussing all the evidence.

Ed Farmer [00:10:19]:

Your odds of getting a better decision are higher. The biggest disadvantage is the time it takes. God, you're going to be waiting a long time. Right now it's about three years to get a decision out of the board. And if you requested a hearing, tack another year onto that. So you're looking at three to four years just to get a decision. Three years ago, I would have told you, go to the board as often as you can to get that higher quality decision. But they're so backed up right now.

Ed Farmer [00:10:52]:

I want you to exhaust all your remedies at the regional office first. So when's a good time to use a board appeal? When you've exhausted all your remedies, you've filed all the evidence you have, you've done the higher level review, you continue to get denied at that time, I suggest bite the bullet and go to the board. Another good option of going to the board is you have a legally complicated issue. So a complicated effective date issue or a clear and unmistakable error, that's a good option to go to the board. Another good option is when you have a medically complicated issue. So maybe you're claiming a cancer you think is from the burn pits, but it's not presumptive. You're going to want a judge to look at that. Guys, if you go to the board, I highly recommend you get representation.

Ed Farmer [00:11:43]:

A VA accredited agent or attorney. Some VSOs might be able to handle a board appeal, but I think you really need to get somebody represent you. Please don't use these unaccredited companies that claim to be insiders or guardians. They're just going to take your money and they're illegally charging you. Now, I mentioned at the beginning of the video there is a fourth option. And that fourth option is not a track in itself, but it's called a split appeal. So you don't necessarily have to pick supplemental, higher level view or board. You could do a combination of them.

Ed Farmer [00:12:22]:

So say you get granted PTSD at 10% and they only paid you back to the date of the exam. I would do a supplemental appeal for the rating, include some buddy statements showing your symptoms. I would do a higher level review on the effective date issue, and then say you have another issue in there where you're denied a rare cancer due to the burn pits. Take that one to the board. You don't have to pick the same option for the same decision. You could get that split up. Well, I hope this was helpful, guys, as always. If you want to see me do a topic, leave it in the comments.

Ed Farmer [00:12:57]:

If you need additional help with your claim, please use my scheduling app or visit me@bethmawffice.com. I'm Ed Farmer. See you guys soon. Hey, guys. Thanks for listening. I hope this was helpful in navigating the VA disability system. Please continue to follow me and listen for further help. If you guys have a particular issue or story you would like to share, it may help others who have a similar problem.

Ed Farmer [00:13:24]:

Feel free to reach out to me and we could talk about sharing your issue or problem on the next show. If you need some additional help, visit my website vamadeasy.com.