Denied by the VA? A Denial Is a Starting Point, Not a Verdict.
For most modernized VA disability decisions, the available options may include a Higher-Level Review, a Supplemental Claim, or a Board appeal. Which option is available, and the deadline that applies, depends on the decision you received.
This page addresses the modernized review options available for most VA disability-compensation decisions. Other VA programs and legacy appeals may follow different procedures and deadlines.
VA claims may be denied or assigned lower ratings for many reasons, including incomplete records, inadequate examinations, overlooked favorable evidence, or legal error. Some decisions are legally and factually correct. A meaningful review begins by identifying what, if anything, the decision got wrong and which review option is actually available.
Since 2019 the framework for most disability-compensation decisions is the Appeals Modernization Act (AMA): three review options, each with its own evidence rules and its own deadline. Patrick Nolan is a veteran and a Missouri attorney accredited by the U.S. Department of Veterans Affairs. This stage turns on regulations, evidence standards, and the potential factual, medical, or legal errors reflected in the claims record.
The Three AMA Review Options
Higher-Level Review
An experienced adjudicator who did not participate in the prior decision reviews the claim de novo, on the evidence of record as of the prior decision notice (VA Form 20-0996). No new evidence may be submitted. It can be the right option when the prior decision misapplied the law or overlooked evidence already in the file. The reviewer may also return the matter for correction of a predecisional duty-to-assist error when the reviewer cannot grant the maximum benefit.
Supplemental Claim
You submit or identify new and relevant evidence, or an applicable change in law (VA Form 20-0995). It can be the right option when the record is missing necessary evidence, but evidence development must be planned around the applicable filing deadline.
Board Appeal
A Notice of Disagreement (VA Form 10182) sends the case to a Veterans Law Judge on one of three dockets. Direct Review is decided on the existing record. Evidence Submission allows evidence with the Notice of Disagreement or within 90 days after VA receives it. The Hearing docket allows a hearing plus evidence at the hearing or within 90 days after it. Hearings are held virtually, by videoconference at a VA location, or in person in Washington, D.C. It is often slower, and the Board's decision must set out its findings, its conclusions, and the reasons or bases for them.
After a Board Decision: the Veterans Court
After a final adverse Board decision, an adversely affected claimant generally has 120 days from the date the Board issues notice to file a Notice of Appeal with the U.S. Court of Appeals for Veterans Claims. The Court reviews final Board decisions for legal error and may affirm, reverse, vacate, or remand the decision. A remand sends the matter back for further proceedings and does not itself guarantee an award of benefits. A Board remand is generally not itself appealable to the Court.
Practice before the Court requires separate admission to the Court's bar; VA accreditation does not confer it. Patrick Nolan is not currently admitted to the Court, and Court matters are referred to, or handled with, separately admitted counsel. The description above is provided as general information about the process.
Deadlines can determine the effective date. Acting within the applicable period does not automatically preserve an effective date; the claimant must timely and properly pursue a review option that is legally available for that claim. Timely and proper continuous pursuit may preserve eligibility for the earliest effective date otherwise permitted by law. If continuous pursuit is broken, a later Supplemental Claim generally cannot receive an effective date earlier than the date VA receives it. A final adverse Board decision has a separate 120-day deadline to appeal to the Court, and some matters, such as contested claims, carry shorter deadlines. The deadline that applies to your case is shown on your decision notice.
Free Initial Review of Your VA Decision
Bring the decision notice. We will identify the review options that appear to remain available, the deadline shown by the notice, and whether a fuller review of the claims record is warranted. Contacting the firm does not file a review request or suspend any VA or court deadline. Representation begins only after the firm accepts the matter in writing.
Choosing the Option Is Strategy, Not Paperwork
The options are not interchangeable, and the choice is rarely obvious:
- Wrong facts in the decision, right facts already in the file? A Higher-Level Review may fit.
- The file is missing necessary medical evidence? A Supplemental Claim may be appropriate, but evidence development must be planned around the applicable filing deadline.
- The issue is genuinely legal, such as the rating criteria, effective-date law, or the benefit of the doubt? A Board appeal puts the question to a Veterans Law Judge who must give reasons or bases.
The next step depends on the decision being reviewed. After an initial decision or a Supplemental Claim decision, the options generally include a Supplemental Claim, a Higher-Level Review, or a Board appeal. After a Higher-Level Review decision, the options generally include a Supplemental Claim or a Board appeal, but not a second Higher-Level Review of the same issue. After a Board decision, the options generally include a Supplemental Claim or an appeal to the Court. The same issue is not pursued in more than one administrative option at the same time, although different issues decided in the same decision may take different paths. Managing that sequence, and the deadline attached to each step, is a large part of what representation does.
What Fee Rules Mean for You
Federal law (38 U.S.C. § 5904; 38 C.F.R. § 14.636) governs when VA-accredited attorneys and claims agents may charge a fee.
- No attorney fee is charged for services performed before VA issues notice of its initial decision on the claim or claims involved. Limited exceptions exist in the regulation.
- After that notice, a fee may be charged, subject to accreditation, a proper appointment by the claimant, a written fee agreement filed with VA, and the requirement that the fee be reasonable.
- This firm's written agreement uses the direct-pay contingent structure permitted by law: a fee of 20 percent of past-due benefits awarded, paid by VA out of those past-due benefits. Direct payment by VA requires an agreement that is wholly contingent and does not exceed 20 percent.
- The client remains responsible for reasonable out-of-pocket case expenses, such as obtaining medical records and private medical opinions. Those expenses are the client's responsibility whether or not benefits are awarded.
- Representation before the U.S. Court of Appeals for Veterans Claims is separate, is governed by the Court's own rules, and is not covered by the agreement described here.
The written agreement controls, and it is provided and explained in plain English before anything is signed.
Start With the Decision and the Record
The first question is the deadline. We read the decision notice, identify the options that appear to remain available and the date each would have to be filed, and only then turn to the claims file. Reviewing the C-file is how potential factual, medical, or legal errors and evidentiary gaps are identified, but a deadline missed while records are being gathered cannot be repaired by the file review that follows.
Need help with a VA disability claim you have not yet filed? Start with VA disability claims. Helping a parent who needs care support? See VA pension with Aid and Attendance.
FAQs
How long do I have to appeal a VA decision?
It depends on the option. A Higher-Level Review or a Board appeal generally must be filed within one year of the date VA mails the decision notice. A Supplemental Claim may generally be filed later, but filing within that year matters for continuous pursuit, which may preserve eligibility for the earliest effective date otherwise permitted by law. Some matters, such as contested claims, carry shorter deadlines, and a final adverse Board decision carries a separate 120-day deadline to appeal to the U.S. Court of Appeals for Veterans Claims. The deadline that applies to you is shown on your decision notice.
What is the difference between a Higher-Level Review and a Supplemental Claim?
A Higher-Level Review is a de novo review by an experienced adjudicator who did not participate in the prior decision, decided on the evidence of record as of the prior decision notice. No new evidence may be submitted, so it fits a decision that misapplied the law or overlooked evidence already in the file. A Supplemental Claim is where you submit or identify new and relevant evidence, or an applicable change in law, and it fits a record that is missing necessary evidence.
What happens at the Board of Veterans' Appeals?
A Veterans Law Judge decides the case, and you choose one of three dockets. Direct Review is decided on the existing record. Evidence Submission allows evidence with the Notice of Disagreement or within 90 days after VA receives it. The Hearing docket allows a hearing, held virtually, by videoconference at a VA location, or in person in Washington, D.C., with evidence at the hearing or within 90 days after it. Board review is often slower, and the decision must set out findings, conclusions, and the reasons or bases for them.
I missed the one-year deadline. Am I out of luck?
Not necessarily. A Supplemental Claim with new and relevant evidence may generally still be filed, but if continuous pursuit was broken, the effective date of any resulting award generally cannot be earlier than the date VA receives that claim. Revision of a final decision for clear and unmistakable error is a separate and narrow route, governed by 38 C.F.R. § 3.105 for agency-of-original-jurisdiction decisions and by 38 C.F.R. Part 20, Subpart O for Board decisions; the standard is very specific and successful motions are rare. Bring the decision in and we will look at what remains available.
How do attorney fees work on appeal?
No attorney fee is charged for services performed before VA issues notice of its initial decision on the claim or claims involved. After that notice, a fee may be charged under a written agreement filed with VA, subject to accreditation, appointment, and reasonableness requirements. This firm's agreement uses the direct-pay contingent structure permitted by law: 20 percent of past-due benefits awarded, paid by VA from those past-due benefits. The client remains responsible for reasonable out-of-pocket case expenses, such as obtaining medical records and private medical opinions, whether or not benefits are awarded. Representation before the Veterans Court is separate and governed by the Court's own rules. The written agreement controls, and we go through it before anything is signed.
Should I refile a new claim instead of appealing?
It depends on what changed. A new claim can be the right step for a new disability, or an increased-rating claim for a service-connected disability that has worsened. When the concern is that an existing decision is wrong, the review options exist so the decision itself can be challenged while the original claim date remains in play through timely and proper continuous pursuit. Which route fits depends on what the decision said and on what has changed since.