We Are a VA Disability Appeal Lawyer Team Working For You
The VA has a disability benefits program to provide veterans with monetary compensation for the impairments associated with injuries and other conditions that result from active service. This compensation can be essential for veterans and their families to maintain financial stability; however, the VA does not always approve rightful claims. If you or a loved one is a veteran seeking to recover disability benefits from the U.S. Department of Veterans Affairs (VA), your claim must show that you meet three essential criteria. You’ll need to:
- Prove you qualify as a “veteran” under the VA definition,
- Prove a current disability,
- Prove that your disability resulted from an injury, illness, or event during active service.
If you qualify to file a claim, there is no guarantee that it will be accepted. It is essential that your claim sufficiently proves your status as a veteran, establishes your current disability, establishes that something happened in service, establishes the link between your injury and service, and demonstrates the resulting degree of impairment requiring compensation from the VA.
The process of collecting VA disability benefits can be complex and time-consuming. Your VA disability appeal lawyer from our VA benefits law firm is standing by to advocate for your best interests and to support the best possible outcome in your appeal, or other filing.
The Four Criteria for VA Service Connection Claims
#1 Prove You Are a Veteran
The veteran must meet the VA definition of a veteran to start the process of disability compensation, which requires a minimum period of service and a discharge that was not dishonorable. As clarified by the VA, the term “veteran” is defined as a person who served in the active military, naval, or air service and was released or discharged in conditions “other than dishonorable”. Active duty generally means full-time duty but as discussed elsewhere, it also includes active duty for training and inactive duty for training if the disability occurred in the line of duty.
#2 Prove Your Current Disability
After proving your veteran status under the VA definition, you must demonstrate a current disability with sufficient evidence to accompany your claim. Many VA claims are rejected due to insufficient evidence, something that your veterans’ disability benefits lawyer will do everything possible to prevent. We have an in-house physician who is capable of thoroughly assessing your injuries. We also put our network of medical and vocational experts on your claim to wholly and accurately analyze the connection to service and assess the impairment caused by your disabilities to ensure you are compensated for them.
#3 Prove Something Happened in Service
Once you have established veteran status and a current disability, you must demonstrate that something happened in service. This is referred to as the in-service occurrence. This can be a specific accident, an exposure, or merely the onset of the early symptoms or risk factors for a condition that was diagnosed years after service.
#4 Prove Your Disability is a Result of Your Military Service
This is where you must provide linking evidence or the nexus. Once you have proven your veteran status, an in-service occurrence, and the presence of a current disability, you’ll need to prove the condition is linked to your service. You must show that:
- You have an existing mental or physical disability,
- The disability was caused by an injury, illness, or event that happened while you were serving in the military.
The VA defines disability as “damage to your body or mind that makes you less able – or totally unable – to do everyday tasks, including meaningful work.” Our veterans’ benefits law firm has helped many veterans achieve victories in their appeals, and if your claim has been denied, we are here to assist you through the appeals process.
The Stages of Appeal
It is an unfortunate fact that denials are common when it comes to applying for VA benefits. Denials result from a lack of medical evidence or a mistake on behalf of the filing veteran, just as often as a mistake by the VA. If your VA benefits claim has been denied, a veterans’ benefits lawyer can help you navigate the appeals process, providing essential assistance at each stage of the process. Remember, you cannot retain paid legal counsel until after you have received the first initial VA decision in response to your initial claim. Once you have received a first decision, then you can hire a VA disability appeal lawyer.
The process of appeal that your claim will go through will depend upon whether your case falls under VA’s Legacy Appeal system or if it falls under the Appeals Modernization Act or AMA. Your VA disability appeal lawyer will pursue the most effective strategy to support success, given the unique facts and circumstances of your claim.
Appeals Modernization Act Cases
Most cases that were filed since 2019 are most likely under the newer AMA rules. The idea behind the AMA rules was to streamline the VA appeals process. So, if you have received an initial VA denial on or after February 19, 2019 then you are likely in the modernized appeal process.
Under AMA, once you receive an initial VA decision, you may retain legal counsel. WIthout or without a veterans benefits lawyer, you have 1 year from the date of the VA decision to file an appeal. But unlike the older legacy system, there is not a single appeal method. By contrast, under the legacy system, once you received an initial rating decision denying the claim, you had 1 year to file a Notice of Disagreement (“NOD”). From there, if VA did not resolve the disagreement in your favor, the VA would issue a Statement of the Case, which was supposed to further explain the reasons why VA was not granting the claim. Once you received a Statement of the Case, you had 60 days to file a Substantive Appeal to the Board of Veterans Appeals using what is called a Form 9. Once the Form 9 was filed, you would wait for a Board of Veterans Appeals decision. If that was not favorable, you had to file an appeal with the U.S. Court of Appeals for Veterans Claims within 120 days of the date of the Board decision.
But AMA provides options after the initial denial. Once an initial adverse rating decision is received under AMA, a claimant has 3 appeal options that must be taken within 1 year.. First, he can choose what is called a Higher Level Review appeal, which means no new evidence can be submitted or considered and a higher level VA adjudicator would look at the case. Second, he could choose a Supplemental Claim Appeal, which involves submission of new and relevant evidence. And third, he can file a Notice of Disagreement with the Board of Veterans Appeals.
If the veteran files a Board appeal, he can select from 3 different options. He can choose the evidence submission lane, the direct review lane, or the hearing lane. Each of the lanes has strategic advantages and disadvantages. And, depending on your circumstances, your VA appeals lawyer may opt for a lane that is most suited to achieve your strategic objectives.
There are many strategic considerations when deciding which appeal lane to choose under AMA. Now more than ever before, it is critical to obtain the legal counsel of an experienced VA appeals lawyer after you receive an initial VA denial.
As noted above, there is only one option for appealing an initial denial of a legacy claim. If your appeal arose out of a pre-February 19, 2019 rating decision it is probably a legacy case. If you are reading this now, chances are your case has gone up to the Board already or maybe even to the Court, or maybe it has been languishing at the Board for several years now. If that is the case, you may still have an opportunity to submit additional evidence and you may want to contact a VA appeals lawyer.
But in terms of an overview of the process, the first step in a legacy appeal is the Notice of Disagreement, which is discussed below.
Notice of Disagreement (NOD)
When your application for VA benefits is denied in the legacy system, and you believe the decision is incorrect, or if you believe that the rating your disability received was incorrect, you file a Notice of Disagreement (NOD). You can file a NOD at any time up to a year following the date of your rating decision.
To submit a legacy NOD, you need to submit the VA-Form 21-0958, Notice of Disagreement. The NOD allows you to communicate to the VA why you think your claim denial was incorrect. The NOD form has blocks for the various issues of contention, the medical issues that compelled you to file the form, such as PTSD or depression. You should only include conditions and ratings you disagree with regarding how the VA classified them on the NOD form.
The four primary issues that you can disagree with about your claim decision are:
- Service connection – the link between your current condition and an injury, illness, or event that occurred during your time of active service
- Effective date – the date at which your condition was caused or originated based upon the evidence available presently and historically
- Evaluation of disability – the rating percentage of your disability
- Other – if your reasons for disagreeing do not fit into these three categories, you are allowed the opportunity to explain other reasons
The most important part of the NOD is the section in which you can explain why the VA incorrectly decided your claim. This is where additional evidence can be provided to demonstrate why and how the VA’s decision was incorrect. Private medical records, expert opinions, and other resources of information can be used at this point to support your claim.
When your claim comes back as “not service-connected,” you must explain why this is not the case and provide evidence to prove why. The date when your condition was diagnosed is relevant, in addition to whether or not it stemmed from an injury, illness, or event in the service.
The VA provides the example of how a service-connected knee condition may lead to back strain, making the back issues a secondary issue linked to the knee condition. It is important to provide essential information like dates, diagnostic information, treatment records, and other evidence supporting your position.
Decision Review Officer (DRO) Review
After your VA disability benefits application has been denied, you can request a Decision Review Officer (DRO) review before appealing directly to the Board of Veterans Appeals (BVA). This is an option but you can also choose a traditional appeal. You can request a DRO hearing whenever your case is still at the regional VA office. The review of your file at the DRO is “de novo,” which means you are provided with an original review of your file without consideration of prior decisions. This can be to your advantage and help support the approval of your claim.
There are various benefits concerning the DRO hearing, including convenience and speed. The decision from a DRO hearing is generally quicker than a BVA hearing, and they are typically located at your regional VA office, so it can be more convenient logistically. DRO hearings also have a higher rate of success when you provide sufficient evidence to support your claim. However, it is not uncommon to receive DRO decisions that are wrong.
If the DRO cannot resolve the claim in your favor, the VA will issue a Statement of the Case (“SOC”) that further explains VA’s reasons for denying the claim. Once you receive the Statement of the Case, a Substantive Appeal to the Board of Veterans Appeals must be filed on a Form 9 within 60 days or within the remaining 1 year period following the initial decision, whichever is later. In most cases, it is the 60-day period.
Appeals to the Board of Veterans’ Appeals (BVA)
The last option for veterans regarding their appeal is a consideration from a Veterans Law Judge through the Board of Veterans’ Appeals (BVA). This can only happen if the veteran timely filed his Form 9, as noted above. Whether your case falls under the Appeals Modernization Act or the Legacy Appeal system, you are entitled to a hearing before a judge. You also have a right to have a VA-accredited attorney help you prepare and present your case.
Even if this last step to appeal your claim does not work, additional options may exist. These include beginning a Supplemental Claim, and your veterans’ benefits attorney can help determine the best path toward recovering the total compensation you deserve. Great caution should be exercised with respect to filing Supplemental Claims following legacy denials, as it may adversely affect the effective date of the claim. In most instances, a final Board denial of a legacy case must be appealed to the U.S. Court of Appeals for Veterans Claims.
U.S. Court of Appeals For Veterans Claims
A final Board decision can be appealed to the U.S. Court of Appeals for Veterans Claims. Decisions eligible for appeal are final denials or grants of benefits that are less than the maximum.
Any appeal to the Court must be done within 120 days of the final Board denial. There are exceptions if a motion for reconsideration was filed within 120 days of the final Board decision.
There is no option for non-attorney representation at the Court. This is a Federal appeals court and the government is represented by experienced attorneys who are advocating for the government’s position. It is not a place where you want to do this on your own. Hiring an experienced VA appeals lawyer at this stage is highly recommended. We recommend choosing an attorney who has handled at least 500 appeals before the Court.
How Long Does the VA Appeals Process Take?
In general, it is difficult to predict how long your case will take. We hesitate to put numbers on it because it is changing constantly and depends on so many factors. No two cases are alike. Further, there is a distinction between wait times for initial decisions and then appeal times. WIthin the appeal category, there are wait times for a response to a Higher Level Review appeal or Supplemental Claim appeal, and then Board appeals. Board appeals will take longer, but in our professional opinion, you are more likely to receive a thoughtful satisfactory decision from the Board, which can make the wait worth it. At the local level of the appeals process, cases could take from 12-18 months to process, but Board appeals and cases that go all the way to the U.S. Court of Appeals for Veterans Claims could take 5-7 years or longer.
We see too many people fixated on wanting to get a quick decision. But often a quick decision means a quick denial. If VA focuses on speed, they sacrifice accuracy and so we encourage clients to take a big picture view of things and focus on winning–even if it takes longer. Sometimes, a quick decision is a denial, which will result in years of extra appeals.
In addition, lawyers cannot control the timeline for when VA makes a decision. We cannot waive the proverbial magic wand and make VA decide your case. We do not have a special inside track with VA to move our clients to the head of the line. What we do focus on is building a winning case so that when VA does decide your case, it will be granted.
We have heard all sorts of complaints over the years from people who think VA disability lawyers are slowing down the process on purpose or accusations that because VA is taking a long time to make a decision,that somehow that means the lawyer is not doing his job. All these sentiments are inaccurate and are really coming from a place of frustration at the lengthy appeal process.
We cannot sugarcoat the wait times. It can be a long and daunting process. Do not expect a quick turn-around of your appeal. Anybody who promises you that they can get it done faster is not telling you the truth. Lately, there have been many non-law firm agencies trying to represent veterans in their VA appeals. They make claims about why a veteran should use them as opposed to a law firm. They imply that they can get it done faster and that lawyers cause the cases to take too long. Such claims are manifestly false as nobody has the ability to control the VA processing times.
In addition, sometimes non-attorney agents will simply file new claims because new claims are faster than appeals. But in doing so, they sever the effective date, causing the veteran to lose all the back pay. Such a strategy is short-sighted, focused only on the immediate monthly benefit to the exclusion of retroactive pay.
Grounds for Appeal
There are a variety of grounds for appealing the VA’s decision on your benefits. The best strategy for you will depend upon the unique facts and circumstances of your claim, something that your VA benefits attorney will advise you on.
Errors & Application Processing
It is important to file an accurate and comprehensive VA benefits application initially to minimize the risk of errors. If you were the source of an error in your application’s processing, you may have an opportunity to revise it. When your application was denied due to errors on behalf of VA, you are entitled to an appeal. The accuracy of the processing of your application will impact the decision, and application processing issues or errors can provide viable grounds for appeal.
Disagreement with the Decision
When you disagree with the decision, there are a variety of pathways to challenge the decision, beginning with the NOD, Higher Level Review, or Supplemental Claim. Your VA benefits attorney will provide you with ongoing guidance throughout the entirety of this process to identify how and where to challenge the decision.
When new evidence emerges concerning the origins of your current condition, it can be incorporated into a new claim, a Supplemental Claim, or a Board appeal so long as the evidence submission lane is chosen. If you believe that your claim was incorrectly denied initially, your VA benefits lawyer will review the facts and options to collect more. We can help you collect new evidence from experts and through other legal instruments that will be used to build a stronger claim to ensure that you collect the benefits you deserve.
Changes in Medical Conditions
Changes in your present medical condition may result in a disability caused initially by an injury, illness, or event during your active service. In the VA example above, a knee injury experienced during active service can lead to a back condition for which the veteran can collect compensation. A present change in your medical condition that leads to the development of a secondary condition resulting from an injury during service can entitle you to VA benefits. This is called secondary service connection.
Connect with a VA Disability Appeal Lawyer Who Cares
At our VA benefits law firm, you’ll work with your dedicated attorney from the start, unlike other law firms that delegate much of the work on your case to paralegals. We are only paid if we win. During your free initial case review, we’ll answer any questions you might have, and if we can take your case, we will do everything possible to recover the full compensation you deserve.
If you or a loved one has a VA disability claim or has yet to complete one pending, our veterans’ benefits lawyers are standing by to help. Give us a call at 888-495-5774, or visit our site to schedule a free case evaluation.