Want to know how knowing the difference between Administrative Review vs a Notice of Disagreement vs an Appeal can save you six years on an appeal?
I can only assume your answer is “Yes!” if you are still reading this.
Appeals are tough when VA makes a mistake and it can be even harder finding an attorney to unravel the mistake years down the road since most attorneys are clueless about Voc Rehab benefits.
It is up to you to take control of your claim before a dimwit, nitwit VA employee torpedoes your claim. Now you are here to take action.
Some readers have been asking what I’m up to when I’m not writing. The rest of this article should give you an idea of the different battles I get into on a daily basis with VA and some of their less than honest employees.
[NOTE: All denials dated after February 18, 2019, follow a different set of regulations for appeals and require certain forms.]
VA NITWITS AND LIARS
Few things have become clearer to me over the past decade then the fact that many Voc Rehab employees do not know what their own laws are when deciding claims.
Many are great. Some are apathetic. And quite a few are destructive liars.
Anecdotally, one Voc Rehab counselor even tried to convince me I could not review my own file unless I submitted a request under the “American Freedom Act.”
Have you ever heard of the American Freedom Act to get your file? Me either.
Yes, she did not know the laws under which a veteran can request their file. The right answer is the Freedom of Information Act and Privacy Act. Those laws provide the authority for us to get our files from the government.
That counselor went on to tell me only the most severely disabled veterans could qualify for self-employment benefits because they are a last resort for vets with no other options. Her statements on self-employment were false, likely knowingly false, but she would not budge even when I explained the regulation.
Now, you may also be wondering how much the nitwit counselor I am referencing makes each year?
That Voc Rehab counselor makes $91,000 per year, and she had no clue about self-employment, appeals, administrative review requests or whether a veteran could review their file in person under 38 CFR 21.420.
She is not alone.
Veterans report to me with some frequency that their counselors have no idea what the law says. Instead, their decisions tend to fixate on how to evade paperwork vis a vis obfuscation of the rules or all-out lying.
SIX-YEAR VOC REHAB CASE
I had a Voc Rehab case come up where a Vocational Rehabilitation & Employment Officer (VRE Officer) totally screwed up a veteran’s VRE claim resulting in a six-year appeal that we won at the US Court of Appeals for Veterans Claims (CAVC).
In Voc Rehab, the VRE Officer is the boss at the Regional Office over all the Voc Rehab counselors. They manage their employees and are also responsible for conducting reviews of veteran files when the vets ask for a program change.
In the case I am referencing, the underpinning of the Secretary’s denial was exposed when I discovered the VRE Officer confused an Administrative Review request with a Notice of Disagreement for a Formal Appeal.
The veteran requested an Administrative Review in writing very clearly. The office staff acknowledged that request, but the VRE Officer got the two confused and prematurely processed the review as a Notice of Disagreement for an appeal to the Board of Veterans Appeals.
This was a big no-no, and we successfully got the claim remanded because it was an obvious due process violation.
Now, I am digging through the regulations and policies to understand what Voc Rehab believes the difference is between these kinds of review requests.
What I am about to tell you is based only on a preliminary assessment.
Normally, I wouldn’t post something like this without polishing it up a bit, but I want you all to know how to avoid a massive pitfall Voc Rehab is pushing veterans into on a regular basis across the country.
RELATED: Get Legal Help With Voc Rehab
VOC REHAB REVIEW / APPEAL MESS
Voc Rehab Denial Form Letter
I am going to start this off with a Voc Rehab form letter to give you an idea of what VA is telling veterans who are denied benefits.
Yesterday, a veteran sent me a form letter that spells out the options for a veteran after their claim for Voc Rehab benefits is denied.
That form letter read:
What if you disagree with our decision?
If you disagree with our decision, either you or your accredited representative, such as a Veterans Service Organization representative, independent agent, or private attorney, can request an administrative review or file a formal appeal. You have one year from the date of this letter to take either of these actions.
- Request an Administrative Review
If you disagree with our decision, you can write to us and ask for an administrative review. In your letter, please tell us the reason(s) you disagree with our decision. Send your request to the address at the top of page one.
In an administrative review, a Vocational Rehabilitation and Employment (VR&E) program manager will review your records. He/she will see if there were errors in our decision-making that would allow us to change our decision.
You cannot ask for an administrative review after we receive your appeal of our decision.
File a Formal Appeal
Your other option is to formally appeal our decision. If you want to file a formal appeal, please read the detailed instructions on the enclosed VA Form 4107, Your Rights to Appeal Our Decision.
The takeaway from this form letter is that you need to provide notice to VA that you disagree in order to trigger its duty to review your claim as an Administrative Review.
There were a few other things that jumped out at me, though. What if I file a document stating I disagree with a decision and that I want to contest the decision? I make no mention of “Administrative Review.” How will Voc Rehab process this document?
It used to be that in Compensation claims, such a distinction would not matter because the substance of the letter was what mattered. That used to be the case. Compensation now requires veterans file a VA form for a Notice of Disagreement, so there is less confusion.
Veterans are not expected to have any legal sophistication, after all. Voc Rehab does not have a formal form, yet.
Nonetheless, so long as the disagreement is understandable and the desire to challenge a final decision is there, you have all the makings of a Notice of Disagreement. A Notice of Disagreement is the first stage of an appeal.
According to the M28R, all disagreements described in the above manner should start out at the Administrative Review process. Once an appeal is filed, then the review process is stopped and regular processing starts for an appeal. But a disagreement described in the above is a Notice of Disagreement that starts the appeals process.
“Wait, is that a form of circular reasoning?” you may be asking.
Yes, I wondered about this for a bit. If VA receives a document that is a Notice of Disagreement in substance, is that not an informal appeal? How can they then pull it into an Administrative Review?
Then there is the issue of the “formal appeal” option in the form letter above.
What is the story with this “formal appeal” option? Will I kill my options to have an Administrative Review if I request such a review but mid-review file for a “formal appeal”?
According to Voc Rehab M28R, once a veteran files a Notice of Disagreement, the appellate process starts and Voc Rehab is required to cease its Administrative Review.
My client’s claim got hung up for six years because a VRE Officer got confused about this nuanced issue that should be at the core of her knowledge base.
But would it surprise you to learn that an Administrative Appeal is by definition a kind of Notice of Disagreement based on a literal reading of the regulations?
Administrative Review vs Notice of Disagreement vs Appeal
What in the heck is the difference and why do I care, right?
To keep things clear:
- An Administrative Review request is a written document that expresses disagreement with a decision and a desire to challenge that decision
- A Notice of Disagreement is a written document that expresses disagreement with a decision and a desire to challenge that decision
- An Appeal process is initiated when a veteran submits a Notice of Disagreement. It becomes “substantiated” or “final” after VA provides a statement of the case and after the veteran files a Form 9 to appeal the claim to the Board of Veterans Appeals
These three bulleted definitions have one thing in common. To get the ball rolling, a veteran submits a written document that expresses the veteran’s disagreement with a final VA decision and also expresses her desire to challenge that decision.
On the one hand, one document can satisfy the requirements of all of the above. On the other hand, VRE apparently treats these in a very different manner procedurally, causing a ton of confusion for veterans and its own employees.
Maybe a required form for a Notice of Disagreement would make sense here, no?
The end result is that veterans need to be very careful with what they are doing and if VRE blows it, they need to get on the horn and sort it out asap.
My take on the regulations and policy is that an Administrative Review request is a kind of Notice of Disagreement.
After all, when you strip out all VA’s Marxist language manipulations, you have a written notice that a veteran disagrees with a decision and seeks to challenge that decision.
So if these writings are all basically the same, how can one preclude another and why does it matter so much?
I have been trying to figure out how to help veterans as an attorney during the Administrative Review process. Voc Rehab asserts veterans cannot hire an attorney at that stage. They assert that representation for a fee can only start once the appeals process starts. But when is that?
When does the appeals process really start?
It starts with filing a document that expresses disagreement with a final decision and a desire to challenge that decision.
When does the appeals process really start? It starts with filing a document that expresses disagreement with a final decision and a desire to challenge that decision.
WHAT ABOUT THE FORMAL APPEAL?
Back to what I explained, a formal appeal is basically all the required documents necessary to transfer your informal appeal at the regional office to the Board after you file a Form 9.
This process starts when you file a written document that minimally qualifies as a Notice of Disagreement that could also be construed as a request for an Administrative Review.
According to 38 CFR 20.201(b), a Notice of Disagreement is a writing where the veteran disagrees with a final decision and indicates a desire to contest the decision.
The Voc Rehab M28R says an Administrative Review is likewise a writing where the veteran expresses disagreement with a final decision and a expresses desire to contest it.
An appeal is started when a veteran files a Notice of Disagreement. But I argue that it could also be filed with the exact same document as an Administrative Review. Further, filing a subsequent Notice of Disagreement should not foreclose an Administrative Review after one has been initiated.
Consider the informal appeal and formal appeal parts of the claims like post-death comparison between Purgatory and Heaven. You do not get to Heaven until things are locked into place for your ascension.
Basically, if what Voc Rehab says is true, that filing a Notice of Disagreement cancels our your right to an Administrative Review, but all Administrative Reviews are a Notice of Disagreement, hasn’t Voc Rehab foreclosed all veterans from seeking review since all Notice of Disagreements are an informal appeal?
I do not think Voc Rehab has exactly figured out what they did with their internal policies.
This should not seem like an anomaly. After all, two weeks ago I reported that VA was wrongly stealing GI Bill benefits from veterans who previously used Voc Rehab.
The regulation as written did not allow deducting Voc Rehab time used from GI Bill benefits meaning VA stole millions from disabled veterans for at least one decade. VA Office of General Counsel busted the practice last December.
NOTICE OF DISAGREEMENT AND YOUR ADMINISTRATIVE REVIEW?
I have not figured this part out yet other than that the M28R policy manual says it truncates your due process review rights without any authority.
The relevant regulation is 38 CFR 21.59:
21.59 Review and appeal of decisions on eligibility and entitlement.
A veteran may appeal decisions of the Vocational Rehabilitation and Employment staff on eligibility and entitlement to rehabilitation services to the Board of Veterans Appeals as provided in § 19.2 of Title 38, CFR. However, the veteran or an accredited representative, on his or her behalf, may request administrative review by Central Office prior to filing an appeal to BVA. A case already on appeal to BVA may not be referred to Central Office for administrative review or advisory opinion.
(Authority: 38 U.S.C. 3107(c))
The operative words I am fixated on are “prior to filing an appeal to BVA”. What does this mean? Does this mean a veteran cannot file a Notice of Disagreement?
Since there is no formalized Notice of Disagreement, doesn’t the submission of an Administrative Review request also trigger the informal appeals process? Doesn’t the certification to the Board signify that the appeal is now “to BVA”?
When a veteran files a Notice of Disagreement form for a benefits claim within the Compensation arena, the next step is a review of the claim at the Regional Office. The veteran will also have a Decision Review Officer hearing option.
The processes and procedures are incredibly similar in function but not name, so much so that it seems Voc Rehab has created a distinction without a difference.
Well, that is not exactly accurate.
The primary difference appears to be that Voc Rehab wants to avoid dealing with attorneys in the Administrative Review process where some of its more idiotic and dimwitted counselors violate veterans’ due process right to proper retraining benefits because they are lazy, stupid or dishonest.
Another bigger problem here is that the M28R manual wrongly demands the conclusion of an Administrative Review should a veteran submit an appeal in the middle of the review. As I just explained, there is a huge gray area about what exactly constitutes an appeal much less a “formal appeal” that precludes review at Voc Rehab.
For the life of me, I cannot figure out how Voc Rehab concluded it had the authority to mandate such a restrictive policy without Notice and Comment Rulemaking. This overreach has at least harmed a few veterans that I know of, and I am sure many others.
This abyss of filing a written notice that you disagree and the “formal appeal” certified to the Board is tricky business, and I hope Voc Rehab figures it out.
Thanks for reading this one — albeit a little on the “ranty” side.
It is a work in progress, and I am hoping to get some clarity from the VA on this subject very soon. And while I do that, at least you will be able to better navigate your review request.