The appeals process: When an appeal is remanded


shadow

Editor’s note: This is the fourth in a series of five blogs focusing on appeals.

In my previous three posts, I discussed the difference between a claim and an appeal, the appeals process that occurs at the VA regional office and at the Board of Veterans’ Appeals. If you have not read those posts, I suggest that you do, as this post builds upon those.

Just like in the federal court system, where a superior court has the ability to remand — or send back — an appeal to a lower court for another look, the Board of Veterans’ Appeals has the ability to remand a case back to the regional office.

Remands

While the Board has the ability to remand, it uses the remand differently than a typical court system. In a typical court system, a higher court usually remands a case when a lower court interprets a law incorrectly.  In VA’s circular system, appeals are remanded for many reasons. A remand may be necessary if there has been a change in law, a worsening of a disability on appeal or the Veteran introduces new evidence or theory of entitlement at the Board.

Typically each time one of these things happens, a rule of law called Duty to Assist (DTA) is triggered. DTA is an obligation VA takes very seriously. It means VA has to help you develop your claim. Often, this means scheduling you for another exam, gathering records on your behalf or giving you an opportunity to comment since a law change. About two-thirds of the Board’s remands are for reasons that arose after VBA finished processing the appeal and sent it to the Board.

Appeals are remanded for many reasons…if there has been a change in law, a worsening of a disability on appeal, the Veteran introduces new evidence or theory of entitlement at the Board or if the regional office did not process your claim correctly.

Appeals are also remanded if the regional office did not process your claim correctly – usually the result of insufficient evidence gathering. While the number of these avoidable remands has declined considerably in recent years, we continue to work to improve our processing accuracy.

If the Board remands your appeal, the judge will lay out clear steps which the regional office must complete before issuing another decision on your appeal. After completing the required steps, the regional office will make a new decision that either continues the prior decision or grants your appeal. If it continues the prior decision, you will receive a supplemental statement of the case (SSOC) and your appeal will be returned to the Board for a final decision. The Board reviews your case again and renders another decision. Because of updates to laws and evidence, this remand cycle may happen more than once.

In my last post, I told you that if the Board denied your appeal, you could appeal within 120 days to the U.S. Court of Appeals for Veterans Claims (CAVC). If CAVC remands your appeal back to the Board, the Board may issue a remand back to the regional office to follow through on any development actions the CAVC has instructed of VA.

In my next post, I will review all the tips covered in the last four pieces on the appeals process. As always, I look forward to your comments.

Author

Catherine Trombley

Comments

  1. Gayle Glick    

    You talk about this process and how the VA is supposed to HELP us .. why then .. when my claim for increased disability was denied ‘because there was no supporting evidence found in my military health records’ .. and when I finally got a copy of my records after waiting more than a year, I found over 50 pages of documents that supported my claim? If the VA is supposed to help us, why did they say there was no support in my records??

    Obviously, things like this is why so many veterans are upset and feel that delay, delay, deny is the standard process.

    1. David A Brett    

      I have an appeal which turned to remand from 2009. Most recently my VSO in St Pete Region, said the remand was finally with the regional office rating official. It got back to them in 2013, and I’ve gotten excuse after excuse since then. It’s hard to believe since the Va call line and ebenets don’t show any update since w013. I’m in a job where we share the importance of the BDD program and of ebenefits. It’s really difficult when I know Joe broke ,both tools are.

    2. Walker Craig Smith    

      How does a veteran collect the retroactive payments owed when a remand in his favor against the VARO and the awarded amount is large. The VARO modifies the remand to avoid paying the specified amounts and then manipulate the wording of the awards letter to fit their agenda and avoid paying.

      1. Catherine Trombley    

        Hi Walker, The VARO can’t modify the remand, that is a written order issued by the judge. It is in your file and depending on whether your file is in paper or electronic, its either a piece of paper or a pdf. The VARO does not have access to those templates, nor, do they have the judges signature.

        To your point, VAROs do make mistakes — for all the technology put in place, it is still a human process at its core. And it is possible they RO did not follow the remand actions. If your disability was not granted in full (meaning you were not granted the full amount allowed under the law) it will automatically go back to the Board for review. And if something is amiss, the Board will likely catch it.

        if it was granted in full, you can appeal the payment you received, the effective date or anything else. It is an open system. I would suggest having a credited representative review it to see if they agree with you.

        1. Robert Shaver    

          You are so pretty. But the system does not work that way. Please quite so grown folks can talk!

    3. Tom Sprague    

      I’ve been turned down for Prostrate Cancer, agent orange. I honestly do not understand and afraid to appeal with a Board that doesn’t appear to care or understand what we have been through.

  2. Ron Hartman    

    That’s normal I have spent fifty years being set aside they know the me and a lot of Vets will be long gone by the time they get around to us.R

  3. julie maille    

    getting information is next to impossible. i had filed an appeal because UI had been stopped because they said i hadn’t returned the yearly form. i had returned the form and my appeal was granted and i was supposed to receive retro active UI. I received two months instead of the three months i was supposed to receive. I called the 800 number and was put on hold while she checked with someone. next thing i know i hearing a message from the local VA office. since i wasn’t expecting my call to be transferred i didn’t have anything to write with. there isn’t be phone number for the local VA that i have been able to find. i sent an e-mail to the person at the local VA that i had communicated with about the initial appeal. apparently that person didn’t even read my e-mail because the response was the same as my two previous e-mails except for the number. this is our sixth response …….your appeal was closed on 7/31/2015. not knowing what else to do i filed an appeal to get my money. i had hoped once somebody read it they could look at my file and get the rest of my money sent to me. the last update on ebenefits is dated 17 sep 15.

    claims, appeals, updates on ebenefits take way too long. it is also taking too long to pay me my money (that i desperately need ) especially since it was the VAs fault three time! first when they stopped my UI when they had the form prior to the deadline. second when they underpaid me the retroactive UI. third when i couldn’t get any information related to who i needed to contact to be paid the rest of the money. and now i sit and wait for and wait and wait for my money.

    the VA needs to hire people to get all of these backlogs caught up and keep them caught up. vets that can’t work due to a service connected disability shouldn’t be homeless, unable to provide for their families, etc. yes, when and if the claim is approved they will receive retro active pay til the date of filing but what are they supposed to do while they are waiting??

  4. timothy hooey    

    I am 100% and just came down with sleep ALP. Was told if I try to get a claim for this they would take away from my P.T.S.D. And the beat goes on,yes I did see the New form on this,and I don’t blame the VA on this because of War Vet;s from the last War got to together because this was a easy 40 % .So now I have to live with this air- machine or I could die. Just to let who ever know..HOOT”Vietnam 71-72

    1. John T. Rowley Sr.    

      I know what your going through. I see a VA doctor over 10 years ( 2 diff doctors ) say I have ptsd but VA turns me down ?????????????

      1. Robert Shaver    

        I have am there. Let God sort them.

        Editor’s note: This comment has been edited by Vantage Point staff per VA’s social media policy.

    2. Catherine Trombley    

      Timothy,

      I would question anyone who tells you that applying for another condition would take away from the one you currently have. Unless there is something in your record that makes them think you would no longer qualify for 100 percent. But if this person has never looked at your record, then use caution. Make sure you are talking to a reputable person. With that said, you are already rated 100 percent as you stated above. You can’t be more than 100 percent disabled. And with 100 percent disabled, your health care costs (including that machine) are covered by VA health care. If your health declines to a point that you can no longer take care of yourself (dressing, cooking, bathing, etc) due to your service connected disabilities, then you or your family should talk to VA about what other compensation you would be entitled to.

  5. David Radowicz    

    I really hate to say this to all of you vets, myself included, all these comments that vets make on this website and some others doesn’t even get read. The VA figures that if vets rant and rave on these posts they are helping to relieve stress, anxiety, depression, or worst yet suicide. The bottom line is that ALL regional offices are corrupt with misconduct in handling initial and remanded claims handed down by the BVA and Court of Veterans Appeals. Unless ALL Claims Dept’s in Regional Offices are shut down permanently, then and only then, will the VA be able to streamline and correctly handle claims at one appointed location with a claims director overseeing the entire claims process instead of 30 or so RO Directors that are creating the problems and backlogs through corruption and misconduct.The BVA is the appellate body of the VA. The BVA reviews decisions on a de novo basis, which means they can only overturn decisions and findings by the RO. They have NO legal authority over the RO Director’s corrupt/misconduct actions/inactions. The US Court of Veterans Appeals is a Federal Court. It is NOT part of of the VA. The Court only has jurisdiction to review the BVA’s decisions and NOT the RO’s You can’t take any actions against the RO Directror until after ALL claims have been denied by the BVA. If the BVA remands your case back to the RO, then it all begins again with the same corrupt & misconduct actions/inactions, deny, delay, delay until a number of years have gone by and the BVA gets a crack at it again. In my case it is now almost 21/22 years into the current process. DO WE NEED A COMPLETE OVERHAUL OF THE VETERANS BENEFITS ADMINISTRATION AS IS TODAY?????? YEP! YOU BET WE DO THE SOONER THE BETTER FOR ALL OF US.

    1. Catherine Trombley    

      Hey David,

      I work at VBA, I used to work at the Board as a Veterans advocate and I used to feel EXACTLY like you. I have filed claims, appeals, been through vocational rehab, used my GI Bill, and used my home Loan. I also use VA health care. I have been a frustrated veteran and a jaded veteran. And at times I still am. In some ways I think that is what makes me good at my job. I can take what I find difficult to navigate as a Veteran, or better yet, what I read here and you find difficult as a Veteran, and relay that to the many people here in Washington and in the regional offices who care very much what you think.

      We are working to find solutions.To change the culture of VA to put you first, to design these solution around what you want and need. If you are able, I challenge to do what I did, take that passion and come help us fix it. But I am reading this, and if you have a specific issue, I will do my best to help.

      1. Victor Sellers    

        It IS DELAY, DELAY, DELAY, or REMAND, REMAND, REMAND. it is the same thing, and don’t play us for fools, saying it’s different than the civilians court system. How many times will can a remand happen?, as long as the veteran is living, that’s how long. I spent a month hospitalized from disease or exposure, was issued a P3 permanent profile for all organs, body systems, and was refused any treatment for 43 years afterwards, even though my conditions worsened while on duty. I had permanent on going conditions which the Army knew about, and was discharged with chronic lung issues, enlarged prostate, chronic fevers, night sweats, bone pain, chronic group A Streptococcus, sinusitis, pharyngitis, hearing loss, eye aches, migraine headaches, swollen skin, rashes, pruritis, (while on duty), but not a single residual? Permanent defects, but no residuals, even though they are documented? How long does a remand take? 2 or 3 years minimum or until death. If the vet does not die, remand again.

  6. Patrick jahnke    

    I had fight 4-5 yrs if u can find right veteran service off help uuu #1, thier far and between, then when I sent items to the board which was required, va came back with bs , ssi I had filed, and 99% of time it get rejected, I seen a doctor. Less than. 10 mins wrote up a letter 1st paragraph stating I can work with my head injury I got in 1977, 2nd paragraph said I maybe a risk what kinda jobs I may do. But when the broad person review it read paragraph 1, by pass paragraph 2, and reject 100% , but I a got a letter from a doctor who I seen 4 yrs once a mouth tell my mode swings, thing can happen on a spur of moment , my 100% was approved, final. After 5 times rejected,. Keep fighting get letters doctors u seen took care of uuuu, thier maybe one make it ur favor, I’ve seen many doctors only 10 doctors help me, the rest did run around with heath care, in in one know . keep fighting

    1. Catherine Trombley    

      Hi Patrick,

      You illustrate a really good point, from what you said I believe VA needed the medical opinion stating the injury was due to service and detailing that you could not work because the injury presented an employment handicap. You had a doctor who was able to provide that for you. This was the missing piece to the puzzle VA needed.

      I know it felt like a fight, but for a lot of us who have worked claims, it is equally frustrating — we WANT to grant the claim/appeal but our hands are tied by the law. When a Veteran is able to obtain that KEY piece of evidence after five decisions we get pretty excited too. It is unfortunate, because it should feel like a fight for you. It should not be such a process.

  7. Mark Sullivan    

    Appeals that are remanded to the RO’s for additional development or exams need to be treated as priority issues for the RO’s. The claimant receive a letter from the BVA telling them that their remands will be expedited and then they languish at the RO’s for months to years. See this all of the time and there is nothing that seems to be able to be changed about this process.`

    1. Catherine Trombley    

      Hi Mark,

      You raise a good point, and several veterans have made it too as we have done this series. Because of the volume of appeals there are also a lot a remands. Every remand is expedited. But if everyone is expedited, no one is expedited. The system needs to be modernized.

  8. Diane P. Cowan    

    I have been waiting on a decision since 2005. My case was remanded back. My case never closed. I have sent all new documents plus the one on file. Trumatic Arthritis, diabetis, sleep apnea. Now I have developed cadaract., high blood pressure. Under physiological care. I take over w different meds some are 2 to 3 times a day for relief. How can I function if I am always in pain or medicated up. Please help me with my increase.

  9. Amador D. (Ponch) Hinojosa    

    What is the turn around time on an Appeal to the BVA Federal Judge once he Remands it back to the (RO) Regional Office? Since the originating Regional Office forgot to mention or make arguments on my Appeal in which I requested a Permanent and Total Disability for Total Individual Unemployability? Seems these guys at the Houston Regional office take these claims lightly and don’t include all the meat and potatoes into the claim prior to the Appeal going to the BVA for approval. VSO’s need to be a little more thorough on what the submit since I have been fighting this fight with V.A since 1990.

  10. larry k. lewis    

    I gave up on my appeal started in 2010,the word is denied as always

  11. Clark Staehle    

    Another good article, Ma’am.

  12. aLVINO hART    

    The Phoenix Veteran Healthcare and the Veteran Administration are involve in conspiracy against foreign veterans who filed negligent claim against their contract physicians. I have been denied surgery by Phoenix doctor name Neil T. Atodaria
    at the Phoenix eye clinic in 2007, 2008, and 2009. I was told by Dr. (name withheld) at Phoenix VA hospital eye clinic. He said I would go blind if he did eye surgery. My only option is to take travatan eye drops for the rest of my life. In 2011 I was losing my vision so I went to a private Ophthalmologist in Los Angeles, California who differed from Dr. (name withheld)’s opinion. The Ophthalmologist said the eye surgery should have been done in 2007 at Phoenix VA hospital Eye clinic. I file negligence against Phoenix VA and VA Administration in Washington, D.C. attorneys, and my claim was denied. The Veterans administration, D. C., Senators and the congress representatives are bigots. The only way to eliminate bigotry in Washington is to defeat the bums. They are mostly attorneys. Attorneys are dishonest. The deck is stock against foreign veterans.

  13. Doreen seidel    

    I filed my initial claim for a service connected disability in July 2010 and was denied I filed an nod and was denied again. I then filed a form 9 for a hearing that was December 2014 everytime i call they tell me a letter will be sent when I am scheduled for a hearing. Went to my senator and he made a couple of inquiries and received a pat answer about it being in the VA in Washington dc. I called dav several times and don’t hear back from them. Then I called vfw and was told that Dav was my representative and they couldn’t help me. Once again I fee like I fell through the cracks of this broken system

    1. Catherine Trombley    

      Hi Doreen. Hearings take time to schedule because there are only so many people to hear your hearing. It also depends what type of hearing you asked for. I discussed this in my last post on the process at the Board. If you must have a hearing, the best bet is to schedule a teleconference hearing. You basically get to Skype or FaceTime with the law judge. Read my last post to help determine if you need a hearing, and what happens if you don’t have a hearing. http://www.blogs.va.gov/VAntage/25855/the-appeals-process-appeals-at-the-board-of-veterans-appeals-board/

  14. tim moss    

    is there anyone put that can help or do you need a civilian lawyer,. my appeal has been going on years and in the last 30 days I have been to 2 qtc exams one bdq exam plus xrays and my reprensentative says it will still be ( in her words a minute before they do anything. I know this sounds messed up but sometimes I do think and i’m probably not the only one that they are trying to wait until we die before they act vets lives are at stake and they act so nonschalant about it

  15. Salvatore J. Ortisi    

    and what do you do when the court remands the case back to varo with the veterans consent and the varo dismisses the case instead? then what? and what do you do when you find other veterans records in yours? and what do you do when varo tells you your files have been lost?

    are you people really brain dead? you can’t figure out why there are more casualties at home by suicide instead of in combat?

    i live in sweden now, where i get better medical care than i ever got at any vamc. that option was available to me because i’m an eu citizen.

    america’s politicians should be ashamed of themselves. but to feel shame, you have to have a moral character and conscience.

  16. andre l. williams    

    I disable vet who is unable work I have a va home loan, I, m currently waiting on va to increase my va benefits, I would like to organize other vets like myself, to fight big banks, (wells fargo, b of a, chase, Citibank, cenlar, among others. respond asap. thanks for your service/ god bless you!!! lets make these people accountable for their actions over the years.

  17. Rev Claude J Hilliard    

    I have been remained and still haven’t herd anything since 2013, had surgury on left knee got msra stayed Jesse Brown 58 days taking I V two times aday to keep leg or die, plus have other service connected issues. That was 2008 I lost job of 34 years plus had to use all 401k to keep home and pay other bills, but no one has answered me, that’s why I tell young people if you don’t have to donot serve because government will give a check that will bounce. I’m Vietnam Veteran

  18. Leon Modrowski    

    Whether a remand is a result of regional office error in statutory interpretation, change in law, or whatever, the following occurs: VA adjudicators, administrators, and all managerial staff continue to receive compensation in the form of wages, and benefits in health, life, and sickness, while today’s service connected veterans merely grow older with relatives eventually applying for burial allowance and a headstone.
    It is so troublesome to see our congressional legislators who have the authority to stop the mismanagement of VA programs, and yet do so little to curb the abuses.
    I am a former first line supervisor at the Chicago Regional Office. I know very well that the agency uses to time to its advantage. VA managers realize that over time, the loss of life, the shredding of claims, and poor adjudication practices will be forgotten. To these officials, it is a classic Ponzi scheme with the agency substituting delays for results.

  19. Donna M. Brown    

    I am a veteran and I find reading these comments depressing. There are so many veterans with valid needs, but the system to meet those needs is somewhere between the Stone Age and the Bronze Age. Maybe if the veterans submitted their claims on papyrus or parchment, they would get a quicker response.

    Having said that, I am thankful for the care I receive at the VAMC. There are a lot of good people working at the VA hospitals.

  20. David Richard Atkins    

    I am at 90%. I can’t work because of my conditions and it sounds like it will take a long time for the VA to make a decision. Don’t these bureaucrats realize we gave our very best and its a shame how long this process is.Why all the red-tape? The evidence and the facts are there. Believe me if I could work I would. You never get to talk to these people. You feel hopeless I’m tired of playing the game! What do you do?

  21. Norm stewart    

    Hi I have been in a long fight with va for ptsd and tbi. After receiving help from a senator to obtain my c file, str’s, and police report from my on duty motor vehicle accident, where I was hit by a car. Here is the addendum added by the veteran’s tbi clinic after reviewing my military history, because they had denied me with this records in their possession.
    ADDENDUM TO TBI HISTORY: Veteran was able to obtain military records with
    assistance. Veteran brought in accident report and records of injury upon
    military discharge. Accident report indicates that veteran did suffer a BROKEN
    LEG AND BROKEN ARM, CONCUSSION, AND CONTUSION FROM ACCIDENT. This information
    is documented on police accident report. Accident report diagrams that after
    VETERAN WAS HIT, HE WAS THROWN 86 FEET FROM POINT OF CONTACT WITH VEHICLE.
    Medical report from William Beaumont Army Medical Center additionally states
    that veteran was on PERMANENT RESTRICTIONS from RUNNING, MARCHING, PROLONGED
    STANDING, KNEELING, CRAWLING, BENDING, OR STOOPING.
    How can the Veterans Administration says it is fair system with evidence being ignored and claims denied with no real duty to assist. My claim is up for reconsideration with this new addendum added and I believe they will still deny me in the hope I die or commit suicide while going through the appeals process.

    1. Donna M. Brown    

      Norm,
      Hang in there, as it seems to me you have a good chance of winning your appeal with this “new” evidence being considered. I really hope it works out for you, even if it does move slowly. And please, do reach out to someone if and when you are discouraged, as there really are people who care.
      Even though words aren’t always adequate, I still want to say thank you so very much for your service to our country.

  22. Joseph Cecil Coleman    

    At a interview with the Boise VARO I was informed that my records were placed in a Category 7, and could only be opened by a Supervisor, what does a Category 7 mean?

  23. Rebecca J    

    Catherine – thank you for these blogs. Quick question about the appeals process:

    I was under the impression that if you had new information that was not submitted or considered with your initial claim, that you should not appeal, but instead simply submit the new information to your local VA so that they can reconsider their decision with the new info. Wouldn’t that skip a step instead of submitting the NOD and then having it remanded to get the same result? Save time?

    Similarly, if the condition has worsened, aren’t we simply supposed to contact our local VA to set up another C&P Exam to have it reevaluated and then the rating adjusted accordingly?

    It seems like it would just complicate and prolong the process to submit an NOD in these instances. Aren’t there better and faster ways to deal with these cases?

    Thanks again for your insights.

Comments are closed.