Veterans’ Disability Appeals (38 CFR 19)

There are two typical VA decisions veterans appeal most often regarding their benefits:

This is when the VA has outright denied service-connection for a disability claim. The VA may deny a claim for many reasons, including insufficient proof that the disability was sustained while on active duty or insufficient proof that the disabling condition currently exists.

For example, a veteran is denied benefits for a torn meniscus in his right knee. But the veteran had a torn meniscus in his right knee while jumping out of an airplane in the military and continues to struggle with symptoms related to this military injury. In scenarios such as this, the veteran should receive service-connection for the torn meniscus in his right since the onset of the injury started on active duty and the veteran is still symptomatic.

NOTE: A 0 percent evaluation is not a denial of service-connection. If the VA awarded you a 0 percent evaluation for a condition, you ARE service-connected and may seek an increase in your rating if your condition ever worsens.

This is when the VA has given a claimant a low disability rating. Disabilities are rated based on their severity and level of impairment they cause. These ratings are used to determine how much compensation a disabled veteran should receive. This means that when a veteran receives a rating that doesn’t reflect the reality of his or her condition, the veteran may not receive the full measure of the benefits he or she is entitled to.

For example, a veteran may receive a non-compensable evaluation (0 percent) for right knee strain. However, the veteran routinely experiences pain in the knee, which is evidenced by wincing. In scenarios such as this, the veteran should appeal the non-compensable rating since painful movement of a major joint is compensable at 10 percent according to 38 CFR 4.59.

Veterans Disability Appeals Chicago ILTo file an appeal in either of these situations, there are several steps that must be taken and strict deadlines that must be met to preserve the right to appeal. This process can be time-consuming and confusing. It is helpful to have a knowledgeable veterans’ benefits attorney representing you to ensure your rights are preserved. You should contact a veterans’ disability benefits lawyer as soon as you receive a denial or a disability rating that is too low.

If you are considering appealing the VA’s decision, contact VA Disability Group online or call 1-844-VETLAWS (1-844-838-5297) for help.

 

The VA Appeals Process

When you are not satisfied with the VA’s decision, there is a three-stage appeals process that you can pursue: (1) Filing a Notice of Disagreement (NOD) with your local VA and requesting a Decision Review Officer review, (2) Appealing to the Board of Veterans Appeals, and (3) Appealing to the U.S. Court of Appeals for Veterans’ Claims (also referred to as Veterans Court, USCAVC or simply CAVC)

The first stage of appeals involves filing a VA FORM 21-0958, Notice of Disagreement (NOD), with the VA. VA Disability Group highly recommends that at this stage you also request a local review (referred to as Decision Review Officer (DRO) review) of the issues disagreed with. The Notice of Disagreement must be filed within one year of the date when you are first informed of the decision that was made on your case.

If you requested a local review when filing your Notice of Disagreement, a “de novo review” of the issues you disagreed with will be conducted. This is a new review of your claims without any deference given to the previous VA decision in which you disagree with. The local reviewer (Decision Review Officer) conducting the new review has the authority to make a new decision on your claim – essentially giving you a “second bite of the apple” at a relatively early time in the adjudication process.

Once your initial claim has been reviewed by the local VA office a second time as part of the appeals process (referred to as the Decision Review Officer review), the VA sends you information on your claim and will include a Statement of Case outlining the regulations, evidence and laws that they used to make a decision on your application. The VA will also include an appeal form when they send you the information about your case. This is referred to as VA Form 9. If you are still not satisfied with the conclusions that the local VA office has come to regarding your claim, then the next step is to appeal to the Board of Veterans’ Appeals by completing VA Form 9.

There are deadlines for filing these forms, so they must be dealt with promptly. A veteran’s disability lawyer at VA Disability Group can assist in preparing these forms and meeting the deadlines. If you are considering appealing the VA’s decision, contact VA Disability Group online or call 1-844-VETLAWS (1-844-838-5297) for help.

If you still disagree with the VA’s decision, you may appeal the decision to the Board of Veterans’ Appeals (BVA) by filing VA Form 9. The job of the Board of Veterans’ Appeals is to review the decisions made by the local VA office. When you request review, you have the opportunity to assert whether you want a hearing to take place.

A personal hearing is an informal hearing conducted by the decision review officer who will decide your claim. The hearing gives you a chance to speak up for yourself and to connect with the person who is making a decision on your claim. Often, it is best to request a hearing, but this will depend on your circumstances and the Statement of Case. A veteran’s disability benefits lawyer can help determine if a personal hearing should be requested and can assist you in preparing for the hearing and presenting your information to the decision review officer.

The difference at this stage of appeals is that you have a choice of three possible hearing formats. These options include:

  • A hearing in the Washington, D.C., area where the BVA is located. This is typically the least desirable option, since attending a hearing in Washington would require many to travel a long way away from their home, which can be very difficult if they are disabled.
  • A video conference. The video conference will take place while you are at your local VA office. The Board members will be in Washington. You will be able to communicate with the Board by going to your local VA office and having a video conference call. This is the quickest method of getting a hearing on your case.
  • A hearing at your local VA office. If you choose this option, then a board member will come to your local office.

No matter which of these options you choose, the hearing is relatively informal and fairly short. Board members, in fact, hear as many as 10 cases each day. However, you will need to present evidence to support your position on why you should receive benefits or a more severe disability rating. This evidence is often heavily relied upon by board members, so it is critical that your evidence be logically organized and compelling.

It is very helpful to have an attorney represent you at this hearing. An attorney can ask you questions and guide you through the presentation of your evidence. If you are not represented by a veteran’s disability lawyer, then you will simply have to tell the board member your information. The board member may ask questions, but it is not the board member’s job to help you make a compelling case.

The BVA does not make a decision immediately on your case, but instead the information you presented and a transcript of the hearing are reviewed by the board member after the hearing. The BVA can allow your claim, deny your claim or send the case back to the local office in order to get more details.

After you are notified by the BVA of their decision, if you are still not satisfied with their decision then you have two options:

  • File a motion for the board to reconsider your case. (This is an effective option only if there was a clear error), or
  • Appeal to the U.S. Court of Appeals for Veteran’s Claims
This is the generally the last step in the appeals process. At this stage you will want to contact an attorney to help you fight for your rights. The U.S. Court of Appeals for Veterans’ Claims is a Federal Court, and appealing a claim to this level involves complex rules and procedural details.

Moving through these stages of appeals can take a very long time – typically a few years after receiving your Decision Letter from the VA. Unfortunately, while a large increase in veterans’ benefit claims was expected given the recent wars, the VA was simply not prepared to handle the large number of claims it received, which has led to a significant backlog in the adjudication of claims and appeals. It is true that the appeals process can take a long time. However, should a claimant be successful, benefits are typically retroactive to the claimant’s initial date of claim and often last a lifetime.

VA Disability Group can help you move through the appeals process and make a compelling case to improve the odds of favorably resolving your claim.

Don’t do it alone. If you are considering appealing the VA’s decision, contact VA Disability Group online or call 1-844-VETLAWS (1-844-838-5297) for help.