When considering attorney representation in a VA disability claim it’s important to understand what stage of review your particular case is in and what filing deadlines apply. VA believes its process to be non-adversarial in the early stages and does not allow veterans to be represented by an attorney until VA had a chance to decide the claim.[1] By law, a veteran may not retain legal representation until after this initial decision is made. Unfortunately, VA’s communications are commonly long and difficult to understand, leaving many veterans wondering what the status of their claim is and what they need to do to continue.
The simplest way to determine the status of your claim is to look at the most recent decision you received regarding your claim. Decisions will initially come from the VA Regional Office, then from the Board of Veterans’ Appeals, and finally from an appellate court, such as the Court of Appeals for Veterans’ Claims.[2]
In most circumstances there are three types of decisions issued by the VA Regional Office – a Rating Decision, a Statement of the Case, and a Supplemental Statement of the case. Each of these types of decisions will require the veteran to meet specific deadlines in order to preserve his or her right to appeal a negative outcome.
The Rating Decision is the first decision you will receive after filing your claim. In most circumstances this will be construed as a final decision from VA giving rise to appellate rights.[3] After you receive this decision you are permitted by law to hire an attorney to advocate on your behalf as you pursue your appeal. If you wish to appeal a Rating Decision you have one year to do so.[4]
The Statement of the Case is the second type of decision issued by a VA Regional Office. A Statement of the Case will be issued only after you have timely appealed your Rating Decision. In it, the VA will provide a more detailed explanation for its Rating Decision. If you are still unsatisfied with the outcome of your claim you must file a substantive appeal using the VA Form 9 within 90 days of the Statement of the Case to continue the appeal. You may still submit additional evidence at this point for VA to consider.
The third type of decision issued by a VA Regional Office is a Supplemental Statement of the Case. This type of decision will only be issued if you file additional evidence following the Statement of the Case. The Supplemental Statement of the Case will address that additional evidence. If you receive a Supplemental Statement of the Case before you’ve filed a Substantive Appeal from the original Statement of the Case, then you will generally have sixty days from the date of the Supplemental Statement of the Case to file the VA Form 9. If the substantive appeal has already been filed, then there are no additional timelines.
After receiving your VA Form 9 the VA Regional Office will certify your appeal to the Board of Veterans’ Appeals, sometimes called the BVA, in Washington, D.C. It can sometimes take three years or more after filing your appeal for this to take place. Once this occurs you will receive a letter from the Board of Veterans’ Appeals informing you that your appeal has been placed on the Board’s docket and that you have 90 days to submit additional evidence. This is your last opportunity to submit new evidence and make new arguments. For this reason it is very important to have high quality representation from an attorney or a Veterans’ Service Organization at this point.
After BVA issues a decision on your appeal you have 120 days to appeal to the Court of Appeals for Veterans’ Claims. If you appeal to the Court of Appeals for Veterans’ Claims the process will be considered adversarial as a matter of law. This means that VA will actively try to defend its denial, and that it no longer has a duty to assist you with developing your claim. VA will have a lawyer working to uphold the decisions VA has previously made.
If you previously filed a claim with VA and you’d like to revisit it but you have missed the filing deadlines to appeal then you must reopen your claim. If you wish to hire an attorney you will have to wait for VA to issue another rating decision before you can do so.
[1] This article refers to hiring an attorney for a fee. A veteran may be represented free of charge by an attorney or any number of veterans service organizations prior to VA’s first final decision.
[2] Other appellate courts that review VA decisions include the US Court of Appeals for the Federal Circuit and the US Supreme Court.
[3] Occasionally VA will issue a decision containing a proposed rating. In this circumstance VA is notifying you that they are planning to take some action to reduce your benefits in the future. Proposed ratings are not final decisions. They are supposed to be followed by a final decision not less than 60 days after the date of the proposal.
[4] Please note that the calculation of the one year deadline starts from the date of the notification letter enclosing the decision, which is sometimes dated months after the date of the actual decision.