Overview of the VA’s Adjudication System

(I recently ordered a free DVD from the American Bar Association (ABA). That’s right; it was, surprisingly, actually free. And, another surprise, it has been quite good so far. In addition, the written materials included with the DVD in PDF format are excellent. The DVD, entitled “A Primer on Veterans Administrative Law, Practice and Procedure,” was produced by the Paralyzed Veterans of America and is being distributed by the ABA. The DVD covers some basic concepts in the laws governing veterans’ claims and appeals. I’m going to use the DVD as a guide in preparing several blog posts in the coming weeks. BTW, you can order the free DVD yourself here.)

The system of adjudicating claims adopted by the Department of Veterans Affairs (VA or agency) is designed to be simple to navigate. Weather the system actually is simple to navigate is open to question. To initiate a claim with the VA, a claimant must identify the benefit he or she wants the VA to award. Once a claimant does so, an informal claim has been filed. Regulations indicate that “if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.” 38 C.F.R. §3.155(a) (2007). Further, in the event that a “claimant’s application is incomplete, the claimant will be notified of the evidence necessary to complete the application.” 38 C.F.R. §3.109(a) (2007).

The VA system is also designed to adjudicate claims in an informal and non-adversarial manner. 38 C.F.R. §§3.102, 3.103 (2007). In administrative proceedings, no government official appears in opposition to a veteran’s claim. The VA has the “obligation. . . to assist a claimant in developing the facts pertinent to [the] claim” and “any evidence whether documentary, testimonial, or in other form, offered by a claimant in support of a claim and any issue he may raise and contention and argument he may offer with respect thereto are to be included in the records.” §3.103(a), (b).

The VA is under the statutory duty to assist a veteran or other claimant to develop his or her claim for a VA benefit before deciding the claim on the merits. 38 U.S.C.A. §§5103(a), 5103A, 5107 (West 2002 & Supp. 2007). “When after consideration of all evidence and material of record in a case before the [VA] with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.” §5107(b). The VA has the obligation “to render a decision which grants [the claimant] every benefit that can be supported in law while protecting the interests of the Government,” and “[it is the defined and consistently applied policy of the [VA] to administer the law under a broad interpretation.” §3.103(a). Furthermore, any reasonable doubt regarding service origin, the degree of disability, or any other issue concerning a claim will be resolved in favor of the claimant. §3.102.

The VA claims development and adjudication process begins at a VA Regional Office with the submission of a claim for VA benefits. 38 U.S.C.A. §5101 (West 2002); 38 C.F.R. §3.151, 3.152, 3.159 (2007). A claimant is “entitled to a hearing at any time on any issue involved in a claim[.]” §3.103(c). Further, “[it is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.” Id.

If the VA Regional Office denies a claimant’s application for VA benefits, the VA must send the claimant notice of the denial, notice of the right to appeal, and notice of the applicable time limits for filing an administrative appeal to the Board of Veterans’ Appeals (BVA or Board). 38 U.S.C.A. §5104, 7101-7111 (West 2002 & Supp. 2007). A claimant whose claim the VA has denied has 1 year after notification of the decision is mailed to file a Notice of Disagreement (NOD) with the VA Regional Office. §7105(b)(1). A NOD is “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with . . . [the VA Regional Office’s] determination.” 38 C.F.R. §20.201 (2007).

At the time the claimant files his or her NOD, the claimant has the opportunity to request that the disallowed claim be reviewed by a Decision Review Officer (DRO). 38 C.F.R. §3.2600 (2007). However, a claimant may decline review by the DRO and proceed through the administrative appeals process, as described herein. If the DRO’s additional development or review action does not resolve the disagreement, or if the claimant declines review by the DRO, the VA Regional Office must prepare a document known as a Statement of the Case (SOC). Id. The SOC must be complete enough to allow the appellant to present written and/or oral arguments before the Board. 38 C.F.R. §19.29 (2007).

Following receipt of the SOC, a claimant must respond in writing. The claimant’s response to the SOC is called the Substantive Appeal. The claimant has 60 days from the date the SOC is mailed to file a Substantive Appeal, or the remainder of the 1 year period to file a NOD, whichever is longer. §7105(d)(2). The Substantive Appeal must “set out specific errors of fact or law made by the [VA Regional Office] in reaching the determination, or determinations, being appealed.” 38 C.F.R. §20.202 (2007).

Once a claimant files a timely Substantive Appeal, the Board obtains jurisdiction over the appeal. §7101, 7104. Upon request, a claimant is entitled to a hearing before the Board. 38 U.S.C.A. §7107 (West 2002). The purpose of the hearing is to receive argument and testimony relevant and material to the appellate issue. 38 C.F.R. §20.700(b) (2007). Hearings before the BVA are “ex parte in nature and nonadversarial.” 38 C.F.R. §20.700(c) (2007).

Based on the hearing and review of the entire record, the BVA is required to issue a decision that includes “separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, the reasons or bases for those findings and conclusions, and an order granting or denying the benefit of benefits sought on appeal or dismissing the appeal.” 38 C.F.R. §19.7 (b) (2007). If the veteran disagrees with the Board’s decision, he or she may appeal to the United States Court of Appeals for Veterans Claims (Veterans Court) within 120 days after the Board issues its decision. The VA, however, may not appeal a Board decision to the Veterans Court.

If the veteran or VA disagrees with the decision of the Veterans Court, either the veteran or VA may appeal to the United States Court of Appeals for the Federal Circuit. In order to file a timely notice of appeal, the veteran or VA must file a notice of appeal with the Clerk of the Veterans Court within 60 days after the Veterans Court issues judgment.