Recently, the Department of Veterans Affairs updated the VA Form needed to perfect a Notice of Disagreement, specifically VA Form 21-0958. I have uploaded a copy at VBA-21-0958-ARE (Notice of Disagreement). Substantively, the biggest change is a specific block for the veteran/claimant to indicate whether they are requesting review by a decision review officer (DRO) or via traditional appeal. While this sounds minor, this may obviate the need for the VA to send second notice to the veteran requesting that they inform the VA of which process they are choosing, waiting for response, and then process the response. * I will note that the new PDF form does not automatically move cursor to next character space when one is filled in and, instead, requires individual to press TAB or move cursor to next character space. This is unusual. *
The structure of this form was recently discussed in the consolidated argument in Veterans Justice Group v. Secretary of Veterans Affairs, No. 15-7021; American Legion v. Secretary of Veterans Affairs, No. 15-7061. National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, No. 2015-7024, before the Court of Appeals for the Federal Circuit. Those organizations are challenging the VA’s March 2015 final rule implementing regulations concerning standard claims and appeals forms under 38 U.S.C. § 7105. The argument can be found at Fed. Cir. Argument.
One of the most common questions asked is “What is the difference between review by a Decision Review Officer (DRO) versus traditional appeal?” With attribution to Milwaukee DRO Matthew Middlemas, who provided clearest answer to Congress a few years back:
“Currently, the veteran has the choice of 2 different options to review his initial NOD: 1) DRO review, or 2) Traditional review. A DRO review is a de novo review of the veteran’s entire claims file, which is conducted by a DRO. The DRO has a higher level of decision-making authority than that of a Rating Specialist, to including single signature authority to call clear and unmistakable errors (CUE), and the authority to change a prior decision in the veteran’s favor based on review of the same evidence that was present in the prior decision (difference of opinion). A Traditional review can be performed by a Rating Specialist or a DRO, and it is not a de novo review. The review authority is the same as a Rating Specialist.”
If you have questions concerning appealing a VA decision, please don’t hesitate to contact me at (732) 382-6070 or via email at sdirector@FRE-L.com.