Have you attempted to represent yourself, or has a family member or organization sought to represent you in your claim for veteran's benefits? Some people have been successful at obtaining benefits from the VA in this manner. Many other people have been disappointed and failed to overturn denials because they were uninformed about the process of how to dispute a VA claim denial.
Schwartz Law Firm is a member of Lawyers for Veterans Claims (LVC). LVC is a national veterans' law practice located in Michigan. We are attorneys dedicated to helping those who bravely served our country get the benefits they were promised for their military service. We help veterans throughout the United States to navigate through VA claims procedures.
Contact Schwartz Law Firm to schedule a consultation regarding VA benefit claims procedures.
The information on this page is provided as a courtesy; however, you are advised to discuss your particular case with a lawyer who can review your individual circumstances carefully. We are prepared to advise you to ensure that you do not miss out on benefits that you are entitled to by missing deadlines that you did not know about or did not understand.
The Importance of Deadlines for Filing a Notice of Disagreement
The importance of a Notice of Disagreement (NOD) from the Department of Veterans' Affairs (VA) that you have received after filing a claim for benefits cannot be overlooked. This is the legal way in which a claimant or their advocate notifies the VA that they disagree with a decision by the regional office (RO) and they desire appellate review.
Filing With the Agency of Original Jurisdiction
The filing of an NOD must be timely. This means it must be filed within the appropriate appeal period of the decision with which the claimant disagrees (e.g., within one year of a rating decision). It also must be filed with the agency of original jurisdiction (AOJ). This is typically the RO.
Reexamination of the Claim
When an NOD is received by the AOJ, the AOJ must then reexamine the claim and determine if additional review or development is warranted. When an NOD is received following a multiple-issue determination and the contents of the NOD are not clear as to which issue or issues the claimant desires to appeal, the AOJ must seek clarification.
Unfortunately, this does not always happen. If no other action or development is necessary, or when it is completed, the RO must issue a statement of the case (SOC) unless the matter is resolved by granting the benefits sought.
What Constitutes a Notice of Disagreement?
The legal requirements for what constitutes an NOD are set out in federal law. Section 7105 of Title 38 of the United States Code provides that an NOD must meet the following criteria:
- It must be in writing and filed by the claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal organization. Only one such representative, attorney, etc., will be recognized at any one time.
Section 20.201, or Rule 201 of Title 38 of the Code of Federal Regulations also provides:
- While special wording is not required, the Notice of Disagreement must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review.
The requirement that an NOD contain language indicating a desire for appellate review was not always the law. A recent decision by the Veterans Court determined that a communication submitted by a claimant prior to the revision of the code in 1992 constituted an NOD even though it did not indicate a desire for appellate review, because the code in effect at that time did not contain that requirement.
Statement of the Case · Filing an Appeal
Once the NOD has been recognized, if the relief sought is not granted, an SOC is issued following any necessary development. This then requires the claimant to complete one more step. The claimant must file a substantive appeal, which is typically done by filing a VA Form 9. If an NOD is filed within the prescribed time limits following an adverse decision, that decision will become final, and the claimant will have a very limited opportunity to revisit it.
Deadlines Come Sooner Than What Many People Believe
Because the time limit for filing disagreement with a regional office rating decision is one year, many claimants believe or are told that an appeal arising from a denial by the Board of Veterans' Appeals (BVA) is also timely if filed within one year. This is untrue. A decision by the BVA denying one or more benefits must be appealed to the Court of Appeals for Veterans Claims (CAVC) within 120 days of the date stamped on the face of the Board's decision.
Complexities and Common Errors in VA Benefit Claims
A common mistake is seen when a veteran or his or her representative files an appeal to the CAVC but at the same time files a Motion for Reconsideration with the BVA. The effect of filing a Motion for Reconsideration with the Board is that it robs the CAVC of jurisdiction over the appeal that was filed. Not until the Board rules on the Motion for Reconsideration can the CAVC exercise jurisdiction.
Another common mistake is when a motion for reconsideration, which, according to the VA, can be filed at any time, is filed after the 120-day period for filing an appeal from the BVA to the CAVC has passed. Only if a motion for reconsideration is filed before 120 days has passed will the clock be stopped so that an appeal to the CAVC will still be permitted if the BVA denies the motion.
By way of example, if a veteran received a BVA decision denying one or more claims and he files a motion for reconsideration 30 days after the BVA decision was issued, he will have a remaining 90 days within which to file an appeal to the CAVC if the BVA once again denies his claim(s).
Contact Us to Discuss Procedures for Disputing a VA Benefit Claim Denial
Ensure that your VA benefit claim denial is appealed in a timely and accurate manner for best results. Discuss your case with a veterans' law attorney. Contact us at our law offices in Farmington Hills to schedule a free initial consultation with an experienced veterans' benefits lawyer regarding VA claims procedures.
