The Department of Veterans Affairs makes many mistakes when deciding benefits claims. The numbers are staggering. And while the VA asserts that errors are in decline, a claimant should always be prepared to receive a denial letter. Denial letters are, unfortunately, part and parcel of dealing with the VA.
Given that a claimant stands a reasonable chance of being denied by the VA, understanding the different way to appeal an adverse decision is in the veteran’s best interest.
Specifically, we will discuss BVA and DRO appeals and should you choose a BVA or DRO appeal.
BVA APPEALS
BVA stands for Board of Veterans Appeals. The Board is part of the Department of Veterans Affairs and its members are attorney’s experienced in veteran’s law. Members of the BVA are assisted by staff attorneys, but these staff attorney’s cannot issue decisions. A BVA appeal is often referred to as the traditional appeals process.
When a claim is denied, in whole or in part, a claimant can appeal the decision to the BVA. The BVA reviews decisions issued by local VA offices and then makes a determination on the claimant’s appeal. Before the BVA reviews a claimant’s appeal, the claimant must file a Notice of Disagreement with the local VA office.
If the claimant chooses to appeal through the BVA, the local office, after receiving the NOD, mails a Statement of the Case to the claimant. The SOC details the applicable law and the reasons for the adverse decision. Along with the SOC, the claimant receives VA Form 9, sometimes referred to as a Substantive Appeal. The claimant uses Form 9 to explain why the local VA office made an incorrect determination and why they are entitled to benefits. The local office certifies the case to the BVA and transfers the claims folder.
The BVA will then make a decision based on prior evidence, the submitted Form 9 and, if the claimant chooses, evidence gathered during a Personal Hearing. More often than not, the appeal will be decided by one member of the Board.
DRO APPEALS
DRO stands for Decision Review Officer. Unlike the BVA members, a DRO is not an attorney; rather, they are technical “experts” in veterans law and responsible for processing appeals. A DRO appeal is a request for the local VA office that decided the claim to re-review the claim and make another decision.
To receive a DRO appeal, the claimant must file a timely Notice of Disagreement with the VA office responsible for the original decision and, in that NOD, request the DRO appeal specifically.
A DRO appeal is de novo, which means that the VA employee making the decision cannot use the legal conclusions or assumptions of the first decision. The Decision Review Officer or other VA employee making the second decision can use prior evidence to determine the facts, but they cannot give deference to the original decision.
A DRO appeal is a clean-slate review where the decision maker reviews the facts, both old and new, with fresh eyes. If the DRO has sufficient evidence, he or she makes a new decision. If there isn’t sufficient evidence to make a new decision, the DRO requests additional evidence necessary to make a determination.
WHICH SHOULD YOU CHOOSE — A BVA OR DRO APPEAL?
A claimant should always choose a DRO appeal after receiving an adverse decision from the VA. There is never a good reason to choose a BVA appeal over a DRO appeal.
Simply stated, a BVA appeal takes longer than a DRO appeal. It is not unusual for a BVA appeal to take three or four times as long as a DRO appeal. All else being equal, a claimant will receive a decision from the DRO before receiving a decision from the BVA.
Additionally, the DRO will likely take extra care with a claimant’s appeal. They will often be more thorough. Finally, and perhaps counter-intuitively, the DRO reviewing your appeal is likely to have greater expertise than the BVA attorney. While a BVA attorney reviews a great variety of claims, the DRO will often be a specialist on your particular benefit.
Finally, the fact that the VA gives claimants the option to choose a BVA appeal instead of a DRO appeal is nonsensical and not pro-claimant. It’s the author’s opinion that a submitted NOD should automatically be interpreted as a request for a DRO appeal.