6 Ways to Improve Your VA Disability Claim or Appeal

Video Transcription

Emma Peterson: Hello and welcome to another edition of CCK live. My name is Emma Peterson and today I’m joined by Matthew Fusco and Michelle D’Torri, and we are going to be talking about 6 ways to improve your VA disability claim or appeal. We have a number of posts about this on our website on our blog so please be sure to check those out if you want further information or dive into a particular topic we’ve discussed today. As always, please feel free to leave questions for us in the comments. We’ll do our best to get back to you and let’s just dive in.

So, a quick overview of the VA claims and appeal process. There are several types of disability claims you can file with the VA. Prior to filing, veterans should consider the type of claim that they are making and what evidence will best support it.

Generally, if you’re looking at a service connection claim or a veteran is applying for disability compensation, and has to show that they have a current condition that is caused or aggravated by their time in service, sometimes folks are already service-connected for something and are seeking increased rating claims. They’re arguing for a higher disability evaluation based on the perceived level of impairment. Often times a claim for TDIU or total disability due to individual unemployability can be considered and about increased rating claim umbrella.

And then finally, we have dependency and indemnity compensation claims, which are monthly benefits awarded to surviving spouses or dependent children of service members who passed away in action or died from a service-connected condition.

So, VA is going to consider all the relevant evidence in your case based on your claim type such as medical and service records. The results of any C&P examinations, compensation and pension examinations before they issue a decision. So Matt, could you give us a quick overview of the options that folks out there have for appealing a decision if they don’t like the results?

Matthew Fusco: Sure. So, under the Appeals Modernization Act, or abbreviated as AMA, veterans have three options to choose from when appealing an unfavorable decision from VA. First, they can enter into the Higher-Level Review lane. They could go into the Supplemental Claim lane. And lastly, they could go into the Notice of Disagreement lane, also referred to as an appeal to the Board of Veterans’ Appeals.

In order to preserve their effective date, which is the date from which benefits will become effective pending a grant from VA, veterans must file an appeal within one year of receiving their decision.

Emma: So, there are several ways, tips, and tricks to go about approving your claim or appeal. The VA claims and appeals process can be very confusing and complicated and veterans often receive unfavorable decisions or denials. But there are several ways they can strengthen their claim from the outset. So Michelle, can you walk us through some of those ways?

Michelle D’Torri: Sure. So, a big way would be gathering all important or crucial evidence to your claim and submitting it alongside your claim or appeal. In order to process a claim, VA will go out and follow their duty to assist in some, not all, of the PL lanes but that requires them to go out and request records, request service records. So, having that information handy and submitted ahead of time can help speed up the claims process and appeal process for you as well.

So, some of the things you might want to be submitting include your service records. So, DD-214, service medical records, and service personnel records. One thing I will stress is sometimes the records you have might be different than what VA has so if you have something in your service records that you think is important to your claim, I would really recommend submitting it.

Medical records are very important, especially private ones because for private ones, VA will require a signed release and it could take a little bit longer to get. VA medical centers, they can get a little bit easier but it is very important to submit them ahead of time if you can.

Employment records can be important, especially if you’re going for an unemployability case so that they can see information about your employment history. You can also submit your Social Security earnings statement to show that your earnings were maybe below the poverty threshold or that you weren’t working during a certain period of time.

A big one that we really advocate for are lay statements, which are statements from friends, family members, co-workers because VA often treats them with the same weight as medical evidence. So, getting people to attest to the severity of symptoms, if symptoms began in service, is very helpful in corroborating with your claim.

VA actually has a form to help with this process now on their website. It’s VA Form 21-1021, and it’s called lay witness statement. But you can also still submit it if it isn’t on the form, so keep that in mind as well. One thing that is really important to remember is to avoid submitting evidence that is not relevant.

You don’t want to bury the important information and evidence that might not be relevant to your claim because it can make VA have difficulty locating the important stuff. So, make sure you’re submitting records that are relevant to the conditions that you’re seeking and not just all of your records.

Sometimes that is helpful but not always. So, just be mindful of what you’re submitting and what people are attesting to. For statements and employee records, I would just recommend that they attest to the issues you’re seeking.

Emma: Great. Another way that veterans can go about improving their chances for their claims or appeals is to get an expert opinion. And I don’t mean some big fancy expert for a big litigation appeal but just an opinion from either your treating doctor or a private medical doctor, that can opine on the relationship between your current disability and service or the severity of your disability if you’re going for an increased rating claim.

Veterans are entitled and often get VA compensation and pension examinations. It can be a mistake to just rely on that examination alone. Oftentimes, the form itself for VA examiners is constricting. It consists of a lot of checkboxes. It might not really give the full picture of what’s going on with your particular claim or appeal.

And I would think one of the most common reasons that we see in our practice for claims being denied or appeals being denied is because of a lack of medical evidence either supporting a link to service or supporting the particular rating a veteran is seeking. So, it makes a really big difference if you’re able to obtain a medical opinion from a treating doctor, a private doctor, a healthcare provider. It can really make the difference in your case.

The two items I talked about in detail: a nexus letter or an increased rating opinion. So, nexus letter is a document that is prepared for you by a medical professional that explicitly connects something that happened to you in service to your current disability and uses that magic language — it’s at least as likely as not related. VA’s going to want to see that standard used, so I’ll say it again — at least as likely as not related to service.

A veteran’s physician or medical provider can certainly provide a nexus letter. Accredited attorneys and representatives might be able to help you find someone to write that letter for you. But again, it’s going to have to be someone in the medical field that can provide that opinion for you.

The other option for veterans is to have their treating physicians fill out a disability benefits questionnaire or DBQ. That is VA’s form and they have public-facing versions of those you’re able to get on their website that you can download based on your particular disability. These forms are created for your use in getting an increased rating or service connection, and it allows your healthcare provider to answer specific questions that VA is going to look at when writing your claim.

Additionally, another option is if you’re seeking that TDIU benefit we’ve discussed, you might want to find a vocational expert to provide an opinion on how your disabilities prevent you from securing and following substantially gainful employment. Again, VA’s magic words for speaking TDIU.

Matt, what is another way that veterans and their loved ones can go about improving their chances for claims and appeals?

Matthew: Sure. So, one of the tips we would stress is to fill out forms correctly. VA allows veterans to file initial claims for disability benefits in a number of ways including some of the following. You can submit initial claims online using VA’s e-benefits platform. You can complete a VA Form 21-526EZ, which is an application for disability compensation and related compensation benefits, and you can mail that form to the Evidence Intake Center or send it by fax.

With the help of a legal representative, you can file an initial clean. Those legal representatives might include a veteran’s service organization or an accredited attorney or agent. And veterans can actually go to the VA Regional Office and file initial claims with the help of a VA employee as well.

There are also several new forms that VA has introduced under the Appeals Modernization Act, including Form 20-0995, which is the veteran’s Supplemental Claim application. A VA Form 20-0996, which is an application for a Higher-Level Review, and a VA Form 10182, which is a Notice of Disagreement.

And each of those forms corresponds to a review option or a lane within the new appeal system that we reviewed at the top of the presentation and regardless of how veterans choose to file their disability claim or appeal, it’s important that they do so correctly. If not, their claim may be denied or the process could be delayed even further for them.

Doing so correctly really means using the correct forms, filling them out carefully and thoroughly, and making sure every checkbox is filled out, and every question is answered. Just really kind of double-checking your work when filling out these forms and making sure it’s complete and accurate is going to really help kind of speed the process along for you in making sure that everything goes smoothly.

Emma: Great. So, we have submitting records, getting medical evidence, filling out forms correctly. Michelle, what’s the fourth way that folks out there can improve their chances for claims and appeals?

Michelle: So, one thing that we see that is important to do when you initially file is to not just file for the claim you’re seeking but any conditions that might be secondary to that main condition. So, think of diabetes: common side effects are peripheral neuropathy, retinopathy. Or you have an orthopedic condition and you have depression secondary.

This can help for two reasons. One, VA is supposed to take secondary conditions as within the scope of the appeal. However, that’s a legal argument that sometimes is very complex and takes a while for VA to kind of get it right. So, to help facilitate the process and making it a little faster to get the full benefits you are seeking, it just saves some appeals and some time to list all the conditions that are secondary as well.

It also, in some cases, helps preserve an older effective date for you. Rather than having to fight down the road, make these legal arguments, you’re preserving the effect today because you filed at the same time. So, it’s very important to not only think about “This is a claim I’m filing for. But this is also a condition that is a result of this condition I’m seeking service connection for.”

And again, it’s just helping to kind of shorten the process instead of a lot of people will hold and say, “I’m going to wait until I’m service-connected for this” and then file for something secondary or they don’t think of that. And it’s just something that can help shorten the process for you and get you a little bit more money by preserving an older effective date. So, that’s another thing we also recommend.

Emma: Another way that can improve your claim and appeal is to make sure that you’re getting the help that you need because this can be a very complicated process. Matt was talking about that level of detail that you need in the forms. Michelle talks about evidence gathering. I explained that you might need some medical Nexus evidence.

So, you might want to consider hiring a qualified representative. The VA claims and appeals process is confusing and many veterans find it helpful to seek assistance from a VSO, a veterans service organization, an accredited agent, or an attorney. And those representatives can help you gather evidence to support your case and assure that your claims and appeals are filed correctly in a timely manner and adhere to all deadlines and rules that VA is looking for.

But veterans want to be sure that they are hiring an accredited representative. That is someone who is recognized by VA as being legally authorized and capable of assisting veterans and claimants in pursuit of veteran’s benefits before the Department of VA.

Additionally, if you’re seeking an appeal to the Court of Appeals for Veterans Claims, of course, you’re going to want to find an individual who is admitted to practice before the CAVC. And if anyone has any further questions and wants some further reading on this subject matter, we do have a blog post on what is it an accredited attorney or representative on our website. So, please be sure to check that out.

All right, Matt, any other ideas for folks out there about how they can improve their claims or appeals?

Matthew: Sure. So, one of the last tips we want to underscore is just know and understand your options, right? So, when VA denies an initial claim or assigns a low rating, veterans often feel that they have nothing left to do. However, they can and should appeal these decisions that they may have disagreements with. It’s important to do so within one year of receiving the decision from VA in order to preserve the effective date, and get the most possible backpay.

The new appeal system under AMA provides veterans with several appeal options, some of which we discussed throughout this discussion including appealing to the Board of Veterans’ Appeals. And if the Board upholds VA’s initial decision, where the veteran still doesn’t get their desired outcome, they can continue to work up and continue to appeal.

They have the ability to appeal to the Court of Appeals for Veterans Claims, or the CAVC, if they are not satisfied with their Board decision. The CAVC retains exclusive jurisdiction to review all final Board decisions, and claimants who disagree with a CAVC decision also have options beyond that. So, they can request what’s called a called a motion for reconsideration, which is asking the judge to re-evaluate their decision. They can request a panel decision or in certain circumstances, they can request that the whole Court come to a decision which is referred to as “en banc” which is French for “in the bench”.

Another option as well as for appellants to bring their case to the U.S. Court of Appeals for the Federal Circuit, which is the next level in the federal system. So, veterans have all of these options all the way up to the U.S. Court of Appeals for the Federal Circuit if they have disagreements about what VA initially decided with their claim.

Emma: And even the Supreme Court. Just this week, Matt, there was an argument before the United States Supreme Court about VA benefits systems. So, there are options above and beyond just VA if you happen to disagree with what they’re up to. So, with that, are there any other ideas or tips and tricks, Michelle, that you think those out there should be looking for in doing?

Michelle: I would say make sure you’re thoroughly reading your decisions because in the world of the Appeals Modernization Act, they have a thing called favorable findings which we have some posts on that you would be able to reference back to. But it helps let you know possibly what you’re missing — what element for service connection you’re missing or what element for the increased rating you’re missing. So, that can help you with what you need in your appeal or a further claim down the road.

Also, sometimes they’re just hidden gems in there. So, just make sure that you’re really thoroughly reading through the decision. Again, if you’re not sure what you’re reading, it’s very, you know, it’s very helpful to reach out to a representative to help you.

Emma: Matt, any final thoughts?

Matthew: I just agree with everything Michelle said. Make sure that everything you can really kind of come up with in terms of evidence to support your claim is all going to be beneficial. I really underscore obtaining expert opinions if you’re able to do so from your treatment provider or some other medical professional because that is really going to go a long way. We see a lot of decisions that are really kind of hinged on the opinion of medical experts in a lot of different cases. We think that that’s super important, so if that is a possibility for you, if that’s something your claim is maybe lacking, we definitely highly recommend going out and doing that because it can really go a long way in helping come to a favorable decision in your case.

Emma: And as always, there’s a lot more information found on our blog and in our other videos about the entire claims and appeals process. So with that, thank you so much for watching, and please be sure to subscribe to our page. Once again, I’m Emma Peterson with Matthew Fusco and Michelle D’Torri, and have a good day.