NOVA Challenges VA Ruling on Use of Standard Forms



Regulatory Changes Go Well Beyond Original Intent of Congress

Washington, D.C. – The National Organization of Veterans’ Advocates, Inc. (NOVA) has asked the U.S. Court of Appeals for the Federal Circuit to review a recent ruling by the Department of Veterans Affairs (VA) mandating the use of a standardized form by veterans who wish to initiate claims and appeal decisions on their entitlement to benefits.

The final rule, published on September 25, 2014 in the Federal Register, standardizes the VA’s claims and appeals processes through the use of specific mandatory forms prescribed by the Secretary, regardless of the type of claim or its circumstance.  These standardized forms cover all military benefits, including pension, compensation, dependency and indemnity compensation, and monetary burial benefits (79 Fed. Reg. 57660-57698).

NOVA contends that this ruling expands the role and function of the standard form used by veterans to initiate the appeal process, known as the notice of disagreement or NOD.  Specifically, veterans or claimants must now use the NOD to identify both claims and issues to be appealed, rather than to merely express disagreement with a decision made by VA.

“The newly imposed requirements embedded in these regulatory changes go well beyond the intent of Congress.  VA is not filling a gap in the statute; it has created affirmative duties which if not met by the veteran or the claimant prevent an appeal from proceeding and renders the VA’s decision final,” according to Andrew Rutz, veterans attorney at Bosley & Bratch and lead counsel on behalf of NOVA.

NOVA argues that the only function of a NOD is to notify VA of the intent of the veteran or the claimant to commence the appeal process.  The VA’s final rule imposes sanctions for the failure to identify the claims and issues by limiting the scope of the potential appeal.  It explicitly states that issues not identified on the form will not be considered for appeal.

“This is an impermissible expansion of the statute this Court must invalidate,” NOVA’s petition states.  NOVA goes on to ask the Court to consider that Congress imposed no such requirements or sanctions regarding the intended purpose of a NOD as written in the provisions of 38 U.S.C. § 7105.

In short, Section 7105 does not require that a veteran or claimant identify the claims or the issues in a potential appeal in a notice of disagreement.  Rather, the NOD is meant to be used to notify VA of the veteran’s “lack of agreement” with a decision made by the agency on a claim for monetary benefits.

In addition to NOVA’s Petition for Review, these regulations have also been challenged by Douglas J. Rosinski, Veterans Justice Group, LLC.

For more information about NOVA, please visit our website at www.vetadvocates.org.

About NOVA
The National Organization of Veterans' Advocates is a not for profit educational membership organization incorporated in the District of Columbia in 1993.  NOVA is a national organization of attorneys and other qualified members who act as advocates for disabled veterans.  Our goal is to provide excellent representation before the U.S. Court of Appeals for Veterans’ Claims, the Board of Veterans’ Appeals, and the Department of Veterans Affairs, to veterans who have disability claims against the government resulting from their service as members of the armed forces.  Offices are at 1425 K St NW, Suite 350, Washington, DC 20005.  Phone: (202) 587- 5708, Fax: (202) 587- 5600, Email: kwhalen@vetadvocates.org.

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January 20, 2015

FOR IMMEDIATE RELEASE

Contact: Katy Whalen, Assistant Director

Tel: (202) 587-5708

Email: kwhalen@vetadvocates.org