14.9. Disagreeing with a Decision
Filing A Notice Of Disagreement (NOD) - Background
Once a claimant has received a rating decision, it is up to him or her to decide whether to accept or disagree with VA's determination. If the rating decision is acceptable, for example, VA granted the award of benefits at an appropriate disability rating and with the correct effective date, no action is required by the claimant. If, however, a claimant disagrees with all or any part of a rating decision, he or she has up to one year to inform VA of the disagreement.
The year to file a NOD starts on the date on the VA letter forwarding the rating decision, which VA presumes to be the mailing date. The NOD must be postmarked within one year of the date of the VA letter forwarding the decision. Where the date on the VA letter is much different (earlier) than the postmark on the envelop, there is a chance that VA may allow an NOD within one year of the postmark date. There is no reason to risk an appeal in this way as an NOD can and should be submitted as soon as possible following an unfavorable decision.
To inform VA of a disagreement with a rating decision, a claimant must send a written Notice of Disagreement ("NOD") to the regional office that issued the rating decision, unless the claimant has been notified by VA that the C-file has been transferred to another office. If the file has been transferred, the NOD should be mailed to the office where the C-file is located (although sending a copy to both offices is recommended).
Under the Veterans Appeals and Modernization Act Veterans have three options for review:
Option 1: Higher-level Review
Your claim is reviewed by a more senior claims adjudicator and involves:
- A higher-level de novo review (new look) of the decision
- No submission of new evidence allowed
- The possibility of overturning the decision based on:
- A difference of opinion
- A clear and unmistakable error
The reviewer, who identifies or learns of a duty to assist error, can return the claim to the regional office for correction. You or your representative can request an informal phone call to identify specific issues.
Option 2: A Supplemental Claim Lane
You can submit or identify new and relevant evidence to support your claim. VA will provide assistance in developing the evidence.
Option 3: Appeal Lane for Appeals to the Board
This option allows you to appeal directly to the Board of Veterans’ Appeals. You can choose between three options:
- Direct review: You have no new evidence and do not want a hearing.
- Evidence submission: You have new evidence, but do not want a hearing.
- Hearing: You have new evidence and want to testify before a Veterans Law Judge.
An NOD must be dated, state the date of the rating decision with which the claimant disagrees, and be signed by the claimant or the claimant's VA-accredited representative. A claimant does not have to give any reasons for disagreeing with the decision, although he or she can do so. If the claimant does not file an NOD within one year of the date of the adverse rating decision, the decision becomes final. If this occurs, under most circumstances any benefits for the period since the application was filed are lost and cannot be recovered. The exceptions to finality rule are discussed later in this KNOWLEDGE BOOK.
Steps for Filing a Notice of Disagreement (NOD)
Generally, the VA Regional Office (VARO) nearest the veteran in the state where he or she resides will make the initial decision on a claim for VA benefits. Once the VARO adjudicates a claim, it will send the claimant and his or her service representative, if any, a notice of the decision.
If the VARO denies the claim, or grants benefits at a level lower than that warranted by the evidence or effective from a date later than that allowed by law, the claimant should immediately appeal the decision. The first step in appealing a claim is to file a "Notice of Disagreement" (NOD) with the VARO that made the decision.
Tips on filing a Notice of Disagreement
- The NOD must be in writing.
- You must use one of the forms described above. These forms are available below.
- Identify the decision by the date that the decision was made. Specifically state that you intend to appeal that decision.
- State the specific claim or issue that you are appealing if more than one issue was adjudicated. Since you do not want to appeal an award of benefits that has been properly granted in this situation, specifically state any claim or issue that you do not intend to appeal.
- The appeals process can be involved, time consuming, and sometimes frustrating. If you are unsure or uncomfortable with the process get professional advice or assistance.
In order to begin the appellate process, the VA must receive your NOD within one year of the date of the letter notifying you of its decision. The NOD may be mailed or hand-delivered to the VARO, however, you can fax the NOD if the deadline is looming.
It is always best to file the NOD as soon as possible after you have decided to appeal an adverse decision. That way, the VA will begin to process the appeal sooner and you will avoid the chance of missing the deadline. If the NOD is not timely filed, the VA will consider the VARO's decision to be final. In that event, the VA will only reopen the claim if you submit new and material evidence of entitlement to the benefit sought, or if you can establish that the VARO's decision was the product of clear and unmistakable error (which is often very difficult to prove).