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The Appeals Process

Overview of the Appeals Modernization Act

The Appeals Modernization Act (AMA), implemented in February 2019, completely transformed the VA appeals process. Understanding this new system is essential for effectively navigating your appeal options if your claim is denied or you disagree with your rating decision.

Legacy System vs. Appeals Modernization Act

Before diving into the current appeals process, it's helpful to understand how the AMA differs from the previous "legacy" system:

Feature Legacy System (Pre-2019) Appeals Modernization Act
Appeal Structure One-track system with multiple steps Three distinct appeal options
Evidence Submission Could add evidence at almost any point Evidence submission rules vary by appeal lane
Processing Time Average 3-7 years for completion Faster processing with defined timelines
Effective Dates Complex rules for preserving effective dates Simplified effective date preservation
Board Hearings One hearing option Three different dockets at the Board
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Legacy Appeals

Some veterans still have appeals in the legacy system. If you have a pending legacy appeal, you can opt into the AMA system at certain points in the process. Consult with a VSO or attorney about whether this would be advantageous in your specific case.

Three Appeal Options Under AMA

The AMA provides three distinct options (often called "lanes") for appealing a VA decision:

1. Higher-Level Review

  • Review by a senior VA employee
  • No new evidence allowed
  • Based on evidence already in your file
  • Good for clear errors in how rules were applied

2. Supplemental Claim

  • Submit new and relevant evidence
  • VA has a "duty to assist" in developing evidence
  • Allows you to strengthen your claim with additional evidence
  • Good when you have new evidence that wasn't previously considered

3. Appeal to the Board of Veterans' Appeals

  • Review by a Veterans Law Judge
  • Three different dockets (direct, evidence, hearing)
  • Most formal and legally rigorous review
  • Good for complex cases or when lower-level reviews have failed

You can choose any of these three options after receiving a VA decision. Additionally, after completing one option, you can pursue another if you're still dissatisfied with the result. This creates a continuous open record where you can move between the different lanes until you receive a favorable decision.

Initial VA Decision

You receive a Rating Decision from the VA

If you disagree with any aspect, you have one year to choose one of the three appeal options

After Completing One Appeal Option

You receive a decision on your Higher-Level Review, Supplemental Claim, or Board Appeal

If still dissatisfied, you have one year to choose another appeal option
You can continue moving between options as long as you meet the one-year deadline

Higher-Level Review

A Higher-Level Review (HLR) is an appeal option where a more experienced VA employee reviews the existing evidence in your claim file to determine if the original decision contained an error.

The Higher-Level Review Process

Filing for Higher-Level Review

To request a Higher-Level Review:

  • Complete VA Form 20-0996 (Decision Review Request: Higher-Level Review)
  • Submit within one year of the decision you're appealing
  • Specify which issues you're appealing (you can appeal all or some issues from a decision)
  • Indicate whether you want an informal conference (optional)

Informal Conference

An informal conference is a one-time phone call with the Higher-Level Reviewer where you or your representative can point out specific errors in the prior decision. Important aspects include:

  • Limited to 20 minutes
  • Cannot introduce new evidence
  • Must identify specific errors (legal or factual)
  • VA will call at the scheduled time (be prepared and available)

Review and Decision

During the Higher-Level Review:

  • A senior reviewer examines all evidence that was in the file at the time of the prior decision
  • No new evidence is considered
  • The reviewer looks for errors in fact or law in the previous decision
  • If an error is found, the decision may be revised
  • If a "duty to assist" error is found, the claim is returned to the regional office for correction

Possible Outcomes

A Higher-Level Review can result in:

  • Grant - The reviewer agrees with your appeal and grants the benefit
  • Partial Grant - Some issues are granted while others remain denied
  • Denial - The reviewer upholds the previous decision
  • Duty to Assist Error - The claim is returned to the regional office to correct a development error

Strategies for Successful Higher-Level Reviews

When to Choose Higher-Level Review

Higher-Level Review is most effective when:

  • The VA clearly misapplied a law or regulation
  • The VA overlooked critical evidence that was already in your file
  • The VA made a clear factual error
  • You don't have new evidence to submit
  • You need a quick decision (HLRs are typically faster than other options)

Preparing for an Informal Conference

If you request an informal conference:

  • Prepare a concise list of specific errors to discuss
  • Focus on factual or legal errors, not disagreements about how evidence was weighed
  • Practice explaining the errors clearly and briefly
  • Have your claim file and relevant regulations ready for reference
  • Consider having your representative handle the call

Sample Higher-Level Review Error Arguments

Effective Error Argument 1: "The rating decision denied service connection for my knee condition stating there was no evidence of an in-service injury. However, my service treatment record on page 14 clearly documents treatment for a knee injury on March 15, 2015, while I was on active duty. This factual error warrants correction."

Effective Error Argument 2: "The rating decision applied Diagnostic Code 5201 for my shoulder condition, which is for limitation of arm motion. However, my condition includes documented recurrent dislocation, which should be rated under Diagnostic Code 5202 as specified in 38 CFR 4.71a. This is a misapplication of the rating schedule."

Why These Arguments Are Effective:
  • They identify specific factual or legal errors
  • They reference exact locations of evidence or specific regulations
  • They explain why the error affected the outcome
  • They are concise and focused
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Higher-Level Review Limitations

Remember that Higher-Level Review does not allow for new evidence. If you have new evidence that could strengthen your claim, consider filing a Supplemental Claim instead. Additionally, if you request an HLR, the reviewer can examine all aspects of the decision, which means your rating could potentially be reduced if the reviewer finds errors that worked in your favor in the original decision (though this is relatively rare).

Supplemental Claims

A Supplemental Claim allows you to submit new and relevant evidence to support your claim after a denial or unsatisfactory rating decision. This appeal option is ideal when you have additional evidence that wasn't previously considered by the VA.

New and Relevant Evidence

The key requirement for a Supplemental Claim is submitting "new and relevant" evidence. Understanding these terms is crucial:

New Evidence

Evidence is considered "new" if it:

  • Was not previously part of the claims file
  • Was not before VA adjudicators in the prior decision
  • Is not cumulative or redundant of evidence already in the file

Relevant Evidence

Evidence is "relevant" if it:

  • Tends to prove or disprove an issue related to your claim
  • Relates to an unestablished fact necessary to substantiate the claim
  • Addresses a reason for the previous denial

The "relevant" standard is less stringent than the previous "material" standard used in the legacy system. Evidence doesn't need to be so significant that it would change the outcome; it just needs to be relevant to an issue in your claim.

Examples of New and Relevant Evidence

  • Medical records not previously submitted
  • New medical opinions or nexus letters
  • Recently discovered service records
  • Buddy statements not previously submitted
  • New personal statements providing additional details
  • Recent medical research supporting your claim
  • New diagnostic test results

The Supplemental Claim Process

Filing a Supplemental Claim

To file a Supplemental Claim:

  • Complete VA Form 20-0995 (Decision Review Request: Supplemental Claim)
  • Submit within one year of the decision you're appealing to preserve your effective date
  • Identify the specific issues you're appealing
  • Submit or identify new and relevant evidence

Duty to Assist

Unlike Higher-Level Review, the VA has a "duty to assist" with Supplemental Claims. This means the VA must:

  • Help obtain identified records relevant to your claim
  • Provide examinations or medical opinions when necessary
  • Notify you of what evidence is needed to support your claim

Review and Decision

During the Supplemental Claim process:

  • A VA employee reviews both the existing evidence and the new evidence
  • The claim is readjudicated based on all evidence
  • If more development is needed, the VA will request additional information
  • A new rating decision is issued

Effective Supplemental Claim Strategies

When to Choose a Supplemental Claim

A Supplemental Claim is most effective when:

  • You have new evidence not previously considered
  • You've obtained a medical opinion addressing the reason for denial
  • You've discovered records that weren't in your file before
  • You need the VA's assistance in obtaining evidence (duty to assist)
  • You want to preserve your effective date while strengthening your evidence

Targeting Your Evidence

For maximum effectiveness:

  • Focus new evidence on the specific reason(s) for the previous denial
  • Obtain evidence that directly addresses gaps identified in the rating decision
  • Include a cover letter explaining how each piece of new evidence is relevant
  • If submitting multiple documents, create an evidence index

Sample Supplemental Claim Evidence Strategy

Previous Denial Reason: "Service connection for lumbar strain is denied because there is no medical evidence linking your current back condition to the documented in-service injury."

Targeted Evidence Strategy:

  1. Obtain a medical nexus letter from your treating physician specifically addressing the relationship between your current condition and the in-service injury
  2. Submit recent medical literature supporting that the type of injury you sustained often leads to your current condition
  3. Provide a new personal statement detailing the continuity of symptoms from service to present
  4. Submit buddy statements from family members who observed your ongoing back problems since discharge

Cover Letter Excerpt: "The enclosed new and relevant evidence directly addresses the reason for denial by providing a medical nexus between my current lumbar condition and my documented in-service injury. Dr. Smith's medical opinion (Exhibit A) specifically concludes that my current condition is at least as likely as not related to my service injury, providing the medical link that was noted as missing in the previous decision."

Why This Strategy Is Effective:
  • Directly targets the specific reason for denial
  • Provides multiple types of evidence addressing the same issue
  • Includes a medical opinion (strongest form of evidence for nexus)
  • Explains clearly how the evidence is relevant to the claim
  • Creates a comprehensive package addressing all aspects of the missing element
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Supplemental Claim Tip

You can file multiple Supplemental Claims as you gather new evidence. If your first Supplemental Claim is denied, you can file another one with additional new evidence, as long as you do so within one year of the previous decision. This allows you to continue strengthening your case while preserving your effective date.

Board of Veterans' Appeals

The Board of Veterans' Appeals (BVA) provides the most formal level of review within the VA. Appeals to the Board are decided by Veterans Law Judges, who are attorneys with expertise in veterans law. The Board offers a more in-depth legal review than the other appeal options.

Three Board Dockets

When appealing to the Board, you must choose one of three dockets (tracks):

1. Direct Review Docket

  • No new evidence submitted
  • No hearing requested
  • Decision based on evidence already in the file
  • Fastest processing time (goal: 365 days)
  • Good when your case has strong evidence but needs legal review

2. Evidence Submission Docket

  • Submit new evidence with your appeal or within 90 days of filing
  • No hearing
  • Longer processing time than Direct Review
  • Good when you have new evidence but don't need a hearing

3. Hearing Docket

  • Request a hearing with a Veterans Law Judge
  • Can submit evidence at the hearing or within 90 days after
  • Longest processing time
  • Good for complex cases where you want to personally explain your situation
Feature Direct Review Evidence Submission Hearing
New Evidence Not allowed Allowed within 90 days Allowed at hearing and 90 days after
Hearing No No Yes
Processing Time Fastest (goal: 365 days) Intermediate Longest
Best For Legal errors, complete evidence New evidence without need for testimony Complex cases needing personal testimony

Board Hearings

If you choose the Hearing Docket, you'll have the opportunity to present your case directly to a Veterans Law Judge. Understanding the hearing process can help you prepare effectively.

Types of Hearings

You can request one of three hearing formats:

  • Virtual Hearing - Conducted via video conference from your home computer or mobile device
  • Videoconference Hearing - Conducted via video from a VA facility
  • Central Office Hearing - In-person hearing at the Board's office in Washington, DC

What to Expect at a Board Hearing

  • Hearings typically last 30-60 minutes
  • They are informal and non-adversarial (no VA attorney arguing against you)
  • The judge will ask questions about your case
  • You can present testimony and explain why you believe the previous decision was wrong
  • Your representative (if you have one) can ask you questions to help present your case
  • The hearing is recorded and becomes part of your record

Preparing for a Board Hearing

To make the most of your hearing:

  • Review your entire claims file before the hearing
  • Prepare a concise statement of the issues and why you believe the decision was wrong
  • Practice explaining your case clearly and directly
  • Bring notes to reference during the hearing
  • Be prepared to answer questions about your condition and its relationship to service
  • If submitting new evidence, have it organized and ready to present
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Hearing Tip

Board hearings are your opportunity to speak directly to the person deciding your case. Focus on the most important aspects of your claim and how your condition affects your daily life. Personal testimony about your symptoms and limitations can be particularly valuable, especially for conditions where the severity is not easily captured in medical records.

Board Appeal Strategies

When to Choose a Board Appeal

A Board Appeal is most effective when:

  • Your case involves complex legal issues
  • Lower-level VA employees have repeatedly misapplied the law
  • You've exhausted other appeal options without success
  • Your case would benefit from the expertise of a Veterans Law Judge
  • You want the most thorough legal review available within the VA

Choosing the Right Docket

Consider these factors when selecting a docket:

  • Direct Review - Choose when your file already contains all necessary evidence and you want the fastest decision
  • Evidence Submission - Choose when you have important new evidence but don't need to personally testify
  • Hearing - Choose when your personal testimony would significantly help explain your case or when your condition has subjective symptoms that are best described in your own words

Effective Written Arguments

Whether or not you have a hearing, you can submit a written argument (often called a "brief") to the Board. Effective written arguments:

  • Clearly identify the errors in the previous decision
  • Cite relevant laws, regulations, and precedential cases
  • Explain how the evidence supports your position
  • Address potential counterarguments
  • Request a specific outcome
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Board Remands

In addition to granting or denying your appeal, the Board can "remand" your case back to the regional office if it finds that additional development is needed or that there was a duty to assist error. A remand is not a final decision but rather instructions for the regional office to correct errors or gather more information before readjudicating your claim.

Choosing the Right Appeal Option

With three different appeal options available, selecting the right one for your specific situation is crucial. This decision tree can help guide your choice based on your circumstances.

Do you have new evidence not previously considered by the VA?

Yes: Consider a Supplemental Claim, especially if the evidence directly addresses the reason for denial
No: Consider Higher-Level Review or Board Appeal (Direct Review)

Is your disagreement primarily about how the VA applied the law or regulations?

Yes: Consider Higher-Level Review for clear errors or Board Appeal for complex legal issues
No: Consider Supplemental Claim if you need to strengthen the factual evidence

How quickly do you need a decision?

Need fastest decision: Higher-Level Review (typically 125 days)
Balance of speed and new evidence: Supplemental Claim (typically 125-160 days)
Willing to wait for most thorough review: Board Appeal (365+ days)

Do you want to personally testify about your case?

Yes: Board Appeal (Hearing Docket)
No: Higher-Level Review, Supplemental Claim, or Board Appeal (Direct Review or Evidence Submission)

Have you already tried one appeal option without success?

Yes: Consider a different option that addresses the weaknesses in your previous appeal
No: Choose based on the factors above
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Strategic Approach

Many veterans find success by using a strategic sequence of appeal options. For example, starting with a Higher-Level Review to identify specific errors, then filing a Supplemental Claim to address those errors with new evidence, and finally appealing to the Board if necessary. Remember that you have one year from each decision to choose your next step.

Court of Appeals for Veterans Claims

If the Board of Veterans' Appeals denies your claim, you have the option to appeal to the United States Court of Appeals for Veterans Claims (CAVC). This is an independent federal court, not part of the VA, that reviews Board decisions for legal errors.

Understanding the Court Process

Filing a Court Appeal

To appeal to the Court:

  • File a Notice of Appeal within 120 days of the Board decision
  • Pay the filing fee or request a fee waiver
  • The appeal process is initiated against the Secretary of Veterans Affairs

Court Proceedings

The Court process typically involves:

  • The VA provides the Record Before the Agency (RBA) - all evidence considered by the Board
  • You (or your attorney) file a brief arguing why the Board decision contains legal errors
  • The VA attorney files a response brief
  • You may file a reply brief
  • The Court may schedule oral arguments in some cases
  • A judge or panel of judges reviews the case and issues a decision

Possible Court Outcomes

The Court can:

  • Affirm the Board decision (uphold the denial)
  • Reverse the Board decision (rare)
  • Remand the case back to the Board with instructions to correct legal errors (most common favorable outcome)
  • Dismiss the appeal for procedural reasons

When to Consider a Court Appeal

A Court appeal is appropriate when:

  • The Board made a clear legal error in its decision
  • The Board failed to provide adequate reasons and bases for its decision
  • The Board misinterpreted a law or regulation
  • The Board failed to consider favorable evidence
  • The Board denied due process
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Attorney Representation for Court Appeals

Court appeals involve complex legal arguments and procedures. While you can represent yourself (pro se), most veterans benefit from attorney representation at this level. Many attorneys who specialize in veterans law will represent veterans at the Court on a contingency basis, meaning they only get paid if they win your case, with fees paid by the government under the Equal Access to Justice Act (EAJA).

Representation During Appeals

Having skilled representation can significantly improve your chances of success during the appeals process. Different types of representatives offer varying levels of expertise and services.

Types of Representatives

Veterans Service Organizations (VSOs)

  • Examples: American Legion, VFW, DAV, AMVETS
  • Cost: Free
  • Advantages: Experienced with VA processes, no cost, often have direct access to VA systems
  • Limitations: May have large caseloads, varying levels of expertise
  • How to Appoint: File VA Form 21-22

Accredited Claims Agents

  • Description: Non-attorneys who have passed VA accreditation requirements
  • Cost: May charge fees for work on appeals after an initial decision
  • Advantages: Often specialize in VA claims, may have more time than VSOs
  • Limitations: Cannot represent you at the Court level
  • How to Appoint: File VA Form 21-22a

Attorneys

  • Description: Lawyers accredited by the VA to represent veterans
  • Cost: May charge fees for work on appeals after an initial decision, typically on contingency (percentage of retroactive benefits)
  • Advantages: Legal expertise, can represent at all levels including Court, often specialize in specific areas
  • Limitations: Cost, may not take all cases
  • How to Appoint: File VA Form 21-22a

When to Consider Different Representatives

VSO Representation

Best for:

  • Initial claims and straightforward appeals
  • Higher-Level Reviews where the error is clear
  • Veterans with financial constraints
  • Supplemental Claims with strong new evidence

Attorney Representation

Best for:

  • Complex cases with difficult legal issues
  • Board Appeals, especially with legal arguments
  • Court Appeals (strongly recommended)
  • Cases that have been repeatedly denied
  • Claims involving substantial potential retroactive benefits
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Changing Representatives

You can change representatives during the appeals process by filing a new power of attorney form. However, be aware that attorneys may be reluctant to take cases late in the process, and there may be fee implications if you've previously signed a fee agreement.

Appeal Timeline Expectations

Understanding realistic timelines for different appeal options helps set appropriate expectations and plan your approach.

Higher-Level Review

Average Processing Time: 125 days

Higher-Level Reviews are typically the fastest appeal option. The VA's goal is to complete these reviews within 125 days, though actual times may vary based on complexity and regional office workload.

Supplemental Claim

Average Processing Time: 125-160 days

Supplemental Claims may take slightly longer than Higher-Level Reviews because they involve consideration of new evidence and may require additional development. The VA's goal is to complete these within 125 days, but the duty to assist requirements can extend this timeline.

Board Appeal - Direct Review

Average Processing Time: 365 days

The Direct Review docket is the fastest Board option. The VA's goal is to complete these appeals within 365 days of filing, though this is not always achieved.

Board Appeal - Evidence Submission

Average Processing Time: 440-600 days

The Evidence Submission docket takes longer than Direct Review because of the additional time needed to review new evidence. Current averages are around 440-600 days from filing.

Board Appeal - Hearing

Average Processing Time: 730-900 days

The Hearing docket has the longest wait times due to the scheduling requirements and limited number of Veterans Law Judges. Current averages are around 730-900 days from filing to decision.

Court of Appeals for Veterans Claims

Average Processing Time: 12-18 months

Court appeals typically take 12-18 months from filing to decision, though this can vary significantly based on the complexity of the case and whether oral arguments are scheduled.

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Expedited Processing

In certain circumstances, you may qualify for expedited processing of your appeal:

  • Advanced age (75 or older)
  • Terminal illness
  • Financial hardship (homelessness, foreclosure, bankruptcy)
  • Former prisoner of war status
  • Medal of Honor recipient

To request expedited processing, submit documentation of your qualifying situation along with a written request.

Effective Date Preservation

One of the most important aspects of the appeals process is preserving your effective date, which determines when your benefits begin if your appeal is successful.

Under the AMA, you preserve your effective date by:

  • Filing any appeal option within one year of the decision you're appealing
  • Continuously pursuing your claim by filing a new appeal option within one year of each subsequent decision

This means you can move between different appeal options (e.g., from Higher-Level Review to Supplemental Claim to Board Appeal) while maintaining your original effective date, as long as you file each new appeal within one year of the previous decision.

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Tracking Your Appeal

You can track the status of your appeal through:

  • VA.gov (for Higher-Level Reviews and Supplemental Claims)
  • The Board of Veterans' Appeals website (for Board appeals)
  • The CAVC electronic filing system (for Court appeals)

Regular status checks help you stay informed and ensure you don't miss any deadlines for further action.