Common Mistakes Veterans Make on VA Claims
Maura: Hello everyone. Thank you so much for joining us today for our CCK live discussion. My name is Maura Black. I am joined today by Michael Lostritto and Nick Briggs all from Chisholm Chisholm and Kilpatrick. Today, we are discussing common mistakes that veterans make on their claims. So we have a number of items that we wanted to talk about. Many of these items deal with topics that are outlined and described on our website cck-law.com. So definitely, please feel free to take advantage of any resources on the website that might be relevant to today’s discussion. So we want to first start by explaining just for a little bit of context what veterans should be thinking about generally when filing a claim for benefits, particularly, a claim for service connection and thinking about the elements of the claim is sort of a theme that we are going to be talking about today because when we talk about potential pitfalls or mistakes that veterans might make or experience during the claims process, one of the big overarching things is keeping in mind what the elements of the claim are that you are trying to prove. So for a service connection claim, you generally have to establish three things. You want to establish number one that you have a current disability. Of course, VA will need evidence that you have a disability in order to be able to grant benefits for that disability, so that is the first thing. You can show that by medical evidence and sometimes in some cases through lay evidence of your symptoms and how they affect you, so making sure to keep detailed information and giving that to VA regarding your symptoms, any diagnosis that you have, any treatment that you receive, all that is helpful to prove the current disability element.
Maura: The second thing is that there has to be some in-service event, in-service diagnosis, the in-service onset of the disability. So the second element needs to be supported by some evidence, some allegation that there is an in-service event that caused the current disability or that it is related to it. And that leads us to the third element of service connection, which is a Nexus between your current disability and the in-service event. So keeping those things in mind, it is important when trying to be successful in filing a claim that you submit evidence or lay testimony or medical records or really anything that you have that pertains to those three elements. So there are a number of procedural issues that can come into play, mistakes that we see commonly that veterans might make when filing their claims, but overall those are the things that you want to be keeping in mind if you are going to pursue a claim for service connection. We are also going to be talking about increased rating claims here and there throughout this broadcast. Increase rating claims pertain to a request for an increased evaluation for something that a veteran is already service-connected. So an increased rating claim just requires you to demonstrate that there has been some increase in the severity of the condition, but for increased rating claims, it is also important to remember that VA has certain diagnostic codes in certain ways that they evaluate a broad range of medical disabilities. And so keeping in mind the parameters of VA’s diagnostic codes and their rating schedule, those are important so that you can establish if you are filing an increased rating claim that your condition has actually worsened.
Maura: So that is the kind of an overview of the things that are going to be discussed later in today’s discussion and some things that we always keep in mind when filing claims on behalf of veterans and that veterans should also be keeping in mind. Those are the things that VA cares about, those three elements for service connection, and then evidence of worsening if it is an increased rating claim consistent with the type of disability that the veteran has. So all of that being said we want to move on to mistake number one, which is waiting to file a claim. Mike, can you talk to us about this mistake if you have seen it before in our practice and what veterans could do to avoid making this pretty common mistake I think in the VA benefits world?
Mike: Sure. Thanks, Maura. Yeah, absolutely. The first mistake that we see and I think we see it somewhat frequently, veterans often wait to file their initial claim or a claim for an increased rating. They often wait to file their claim because they think that they need to go out and obtain all the evidence to prove their case before they file their claim and in most instances, that is not necessary. Veterans are allowed to file a claim and then supplement the claim later on with additional evidence. If they have a legal argument to make, to do it later on as well, and it also, in a lot of instances filing a claim triggers VA’s duty to go out and obtain evidence on the veteran’s behalf. And so, really it is not necessary and as I will discuss in a second here can really be detrimental for veterans to wait to file their claim until they have all the evidence. And really the biggest reason why that is the case is because waiting to file a claim can delay a veteran’s effective date for that claim. Generally speaking, effective dates are determined by the date that VA receives a veteran’s claim and so waiting to file a claim can really impact the date that VA determines is the effective date of the claim and therefore can limit any amount of retroactive benefits that are awarded if that claim is ultimately granted. And so just bottom line what that means is that veterans can miss out on VA disability compensation that they may be entitled to but may fail to have awarded based on the fact that they delayed filing their claim. So, as I said, even if VA initially denies your claim, the effective date of the claim will be established and veterans can then, later on, obtain and submit additional evidence. They can ask that VA go out and obtain additional evidence to help prove the claim, but again, in most instances, that evidence is not necessarily required to be submitted at the time a veteran files their claim. And so whether it is a claim for an increased rating, whether it is a claim for an initial claim for service connection, it is really important I think to if you think you have a condition that is related to your service, go ahead and file the claim and that what a bare minimum preserve the effective date of the claim for any future appeal that you might need to make.
Mike: There are a couple of different things that can happen and can really benefit veterans even if they file their claim knowing they do not have all the evidence they need. If the veteran say is granted service connection, but the veteran was not able to submit the evidence, they think they need to show severity of the condition and say their assigned to zero percent or a non-compensable rating for their condition that zero percent or non-compensable rating can still qualify the veteran for several VA benefits including potentially health care benefits and just establishing service connection, even if the rating is not what you might have hoped it to be really makes the job I think a little bit easier down the road and shifts gears to proving the severity of the condition rather than trying to provide the evidence to establish that initial link and so filing the claim when you think the entitlement to the condition has a reason I think is important to get the process going as a lot of us all know the VA process can be quite lengthy, so the sooner we submit our claim the better, it preserves the effective date and we will have the opportunity in most instances down the road to develop and submit additional evidence.
Maura: That is all very helpful and I think there are two things that you mentioned in particular that I have seen quite a bit. One thing is that veterans might wait to file their claim as Mike said because they want to make sure that they prove all of the elements of the claim upfront and what their initial claim submission. So while it is important to include any helpful information that you might have with your claim and anything that speaks to those three elements of service connection that we spoke about before, it is also important to remember that VA has a duty to assist claimants in developing their claims and in obtaining evidence that might substantiate the claims that veterans file. So since VA has a duty to assist you with your claim, it kind of stands to reason that you do not need to file a claim with absolutely everything in support because VA will have a duty to go out and get certain records, potentially request medical opinions, to speak to that third element of service connection, which is the medical Nexus between your current disability and your in-service experiences. So not having all your ducks in a row so to speak should not be a deterrent from at least getting that claim filed which speaks to a second point Mike that you made which is that if you do not file right away, you do probably will not get the effective date until you file the claim and that is usually the basis of the effective date that VA will award. We see a lot of times veterans assume that if something was diagnosed in service and they later file a claim for that condition, but that proof of an in-service diagnosis should mean that they are effective date is when they left service, but that is not exactly the way that effective dates work. And I think we did a recent video on this. Generally speaking, effective dates do not kick in until the date of a claim or the date that entitlement arose, whichever is later and it is usually that filing the claim part that is later. So it is really important if you would like to be seeking benefits to file something. You can always supplement the record between the time that the claim is filed and at least the time that you get your first decision, depending on what appealing you choose thereafter, but definitely, it is important to remember that if you are really intending to pursue a claim, it is best to file it right away.
Maura: The second mistake we wanted to talk about sort of deals with forms, so Nick, can you talk about mistakes that are very common with filing forms incorrectly or filing the incorrect forms when veterans are trying to initiate the claims process.
Nick: So we have done entire cck-live presentations on this before but VA has a variety of forms, many of them have multiple sections, and often times, you are going to need to fill out most if not all of those sections. And with the introduction of the appeals modernization act, there are even more forms for veterans to need to keep track of as they work their way through the claims process. So it is incredibly important for them to make sure that they are filling out the correct forms and that they are filling them out completely. Oftentimes, we see situations where a veteran might have filed the wrong form in response to a decision. And as a result, they couldn’t miss their deadline to appeal that decision further which could run the risk of losing their effective date because a decision was not properly appealed or continued. So for that reason, it is especially important to again make sure that you are filling out the right form that you are filling it out completely and to be cognizant of the fact that VA might reach out to you for clarification. They could send you a letter indicating that you need to fill out a new form or that the form that you filled out is filled out incorrectly or incompletely and in those situations you want to respond as quickly as possible because they are often prescribed deadlines by which you need to respond to VA’s request for clarification and if you do not, we circle back the chance that you might be losing your effective date. So with regard to filing an initial claim specifically, there are a number of different ways that a veteran can do that. They can still do it online using VA eBenefits program platform. They can also file VA form 21-526 easy or if they need to they can fill it out either with a legal representative like a veteran service organization or an accredited attorney or they could go directly to the regional office and work with the VA employee to fill out the form and get it submitted, but one way or another in order to get your claim started, you need to be doing it through one of these means, making sure that the correct form is filled out and submitted and then if they do ask you to clarify the form in any way that you are doing it as quickly as possible.
Maura: And related to the form issue is another mistake that we wanted to talk about which sort of deals with the substance of the form and so the third mistake that we see often is forms that do not specifically list any secondary conditions to the ones that are being claimed. So just as a background for those who are not familiar, there is a concept called secondary service connection that is a little bit different than the standard path to getting a disability service-connected. You still have to show that you have a current disability. You still have to show that there was some in-service event that is related to your service-connected disability and then you have to show access, but when you are filing a claim for a condition and that condition leads to other conditions, that is something you want to keep in mind when you are filling out your claim form. So I think an example would probably break this down a little bit better because it is a little bit confusing, but if you are filing a claim for benefits for a back disability, you are filing just a direct next service connection claim. You are alleging that your back disability was caused by some in-service orthopedic problem or an in-service fall or something like that, but your back disability also causes other disabilities like perhaps radiculopathy in the lower extremities or other issues that might arise due to your back disability. It is important to keep those in mind when you are filing your claim for your back disability because those conditions could potentially be granted service connection as secondary to the primary condition, which is your back condition. So if the back condition claim is granted, then at that point, you could be eligible for benefits for those secondary conditions pursuant to the secondary service connection theory, which is just that you have disabilities related to something that is already deemed service-related.
Maura: I kind of think this mistake cuts both ways. We have it on here as a mistake that veterans make and we definitely see some veterans not completing the claim forms with all of the detail about their secondary conditions or their residual conditions to their primary injury and that lack of detail can be a problem down the road. VA might just grant service connection for that one back disability and they might overlook all of the evidence that connects other conditions to the back disability, but I also think that this is a mistake that VA makes commonly. We see people file claims a lot and when VA conducts their duty to assist development and they gather development and support of the veteran’s claims, sometimes that development reveals that there are conditions related to the primary claimed condition. So the back condition leading to radiculopathy problem, diabetes leading to peripheral neuropathy is another one that we see often, a cervical spine condition leading to upper extremity problems. Those things VA should be granting service connection for if the evidence establishes that they are clearly related to a service-connected condition. The problem is when we see those grants come through for the underlying condition, they have sometimes overlooked that evidence about what is arising secondary to the primary claimed condition. And so even though VA has a duty to maximize the claimant’s benefits and to make sure that they are assigning compensable ratings and granting compensation for anything related to the claimed condition, the reality is that that does not happen with the accuracy or thoroughness that we would like to see from VA or really that the law requires. And so I think the reason why we have this on here is a mistake that veterans make is because it kind of falls on the veterans to make sure that they explain to VA what their expectation is. So if you have a claimed condition, again, the back disability is pretty easy, but you know that that is leading to other issues, it is really important to list those on your original claim form. One reason why doing that is helpful is because it will ensure that VA might pay attention to those things more so than if you did not list them on your form and it also would be a good way to avoid effective date issues in the future. So if you do not list those secondary conditions, but you later alleged that those should have been granted with your primary condition, VA has a habit of reaching out to claimants and saying, “well, if you want to file a claim then you should start over with the brand new claims process for those secondary conditions” and doing that might cut off some time on the appeal clock and might result in an effective date being assigned that is not as favorable as the effective date that was assigned for the primary condition. So, again, I kind of think that this is just as much a VA mistake as it is a mistake that veterans make but to help the process along to kind of play ball, I think it is important to make sure that your claim form articulates all of the disabilities that you think could be related to service or to a service-connected condition.
Mike: Yeah. I think that is a really important point. I mean oftentimes times these secondary conditions can be the difference in if they are granted, the veteran jumping entire compensation level and so there is oftentimes a lot of conditions as you said that are related to what the veteran is in their mind primarily filing for, VA, they are supposed to review those things, of course, does not always do so, so I think it is really incumbent upon the veteran to just keep that in mind when they are filing when they are presenting evidence, do not let VA’s denials dissuade you from pursuing those secondary conditions due to your primary conditions because in a lot of instances the law does support that these conditions should be linked to the primary condition that is being claimed and quite honestly, there are a lot of opportunities and a lot of avenues to link these conditions and to get additional benefits. So, I think that is a great point. It is something that I see in my practice, veterans sometimes they might have tunnel vision, they might solely be focusing on their PTSD claim when their PTSD claim could also result in two other conditions perhaps being service-connected as well that they may not have thought about, so it is something to keep in mind I think it is good advice and something that we do see frequently here.
Maura: I actually want to come back to you Mike to talk about the fourth mistake that we have here and that deals with the failure to obtain a medical nexus opinion. So again, we talked earlier about the three elements for service connection when you are filing a claim for benefits, you have to show a current disability and in-service event or onset and then the third element is really important and that deals with a Nexus between elements one and two, the current disability in the in-service event. So Mike, can you talk to us about mistakes that might arise when veterans are not obtaining their own Nexus opinions?
Mike: Yeah, and this is a big one. I mean failing to obtain a medical opinion is a mistake that a lot of veterans come to us having tried to pursue their claim on their own for a while and being rejected time and again, and one of the things at least that I notice in my practice is that often times the difference between a claim that will be granted and a claim that will be denied is the ability to obtain Medical evidence and submit that medical evidence in support of the claim. So VA will often deny veterans claims based on a lack of medical evidence linking their conditions to their time in service. So that encompasses that third element of service connection that Nexus element, but also I think in terms of veterans showing that they have a disability or they have a diagnosis of a condition, not always but oftentimes, veterans will need some form of medical evidence to establish that particular element of service connection as well. And so what VA will do is they will look at their treatment records that they have in the file. They will if they provide a compensation and pension examination of the VA exam as they are known, VA relies very heavily on the findings and conclusions that come out of those CMP exams. And I think a mistake is Veterans oftentimes rely on the findings of those CMP exams as well. And as I think we all know, oftentimes, the findings and conclusions that are articulated in those compensation and Pension VA exams do not adequately represent the true nature or the extent of the veteran’s disabilities, a diagnosis that go unreported perhaps there are Nexus opinions that are formed after a veteran has only been seen by the medical provider for ten minutes. It is difficult I think sometimes to come up with a medical diagnosis and opinion based on that and so because VA relies so heavily on these VA exams, it is really important that in order to fully develop their claim or their appeal, veterans go out and obtain their own medical opinion or evidence and submit that in support of their claim or appeal and so in order to do those veterans can simply ask their treating physician or medical provider to provide a letter, a Nexus letter perhaps or our letter saying “yes, this veteran has this diagnosis.” If the veteran is working with an accredited representative, it is often possible to obtain an expert medical opinion and so that individual can take a look at the file and render an opinion as to whether the veteran has a diagnosis, whether the veteran’s condition can be related to something in service.
Mike: If a veteran is going to obtain their own medical evidence, I think there are a couple of things that they want to be thinking about in terms of strengthening any Nexus or any physician letter that they might submit. The first thing is that they do want the letter to be written by a licensed professional, ideally someone that has the appropriate medical or clinical experience in the field that they are opining on. Number two, I think really it is important that this person review if possible, but also state in the letter that they are basing their opinion on the veterans time in service and service records, medical and personnel records and just generally any medical history that they are aware of the veteran. Oftentimes, we will see veterans who maybe they have been treating with a private physician a private orthopedic surgeon for ten years or so, that orthopedic surgeon will then have a pretty strong basis I think to say in a letter that this is my patient for x amount of years, I am familiar with their file, with their medical records, and I am competent therefore essentially to make an opinion as to whether the veteran has a certain diagnosis, whether the veteran’s condition can be related to something that happened in service. And that is just kind of building the foundation, the competency of this physician or medical provider to offer this opinion. Again, VA relies very heavily on their own experts, their own CMP examiners I should say, their own medical evidence and so if a veteran or if an accredited rep is submitting an outside opinion, they want to do whatever they can to build that credibility of their own provider.
Mike: Number three, I think it is very important if at all possible for a Nexus letter or a physician’s letter being submitted to be phrased in a way that recognizes the appropriate legal standard for proving the elements of service connection. The VA system is based on a system that in theory is supposed to be beneficial and give the benefit of the doubt to the veteran and so what that means is that the legal standard to prove the case is necessarily less than what it might be in a normal medical malpractice case or litigation, some type of negligence case per se. And so the legal standard is that the veteran needs to show only by at least as likely as not standard, essentially that means that if the evidence is fifty fifty and it is at least as likely to have occurred as not to have occurred, then the veteran should be granted service connection or that particular element of service connection should be established. And so if in providing a Nexus letter or a medical opinion, the provider can phrase their opinion using that language. I think it goes a long way to helping establish kind of the credibility of their opinion and it is couched in language that VA is familiar with and that always is beneficial and then finally and this I think is really really critical, a one-sentence letter that just is bare-bones and conclusory and states, “yes, the veterans condition is related to his or her time in service that might be helpful, but it also really lacks any supporting rationale, any reasoning, and VA may find that it is just not that probative relative to maybe the other evidence in the file. So anything that a provider can do, anything that your medical expert can do, or your treating physician can do to support their opinion, provide rationale provide, provide some citations to medical treatment or records, anything they can do to essentially show their work, in essence, to show how they came to that determination is going to go a long way to proving to VA that this opinion can be trusted, it is probative evidence and we need to consider it in making our decision.
Mike: If a veteran is going to try to obtain this sort of medical evidence or letter on their own, one thing that they can think about doing is filling out or having the medical provider fill out what is known as a DBQ form. Recently, I think VA removed, they used to have these DBQ forms freely available to Veterans on their website. I think there was a time recently over the past year or so when those forms had been removed from VA’s website, but we have obtained some new information that we believe those DBQ forms are going to be provided once again and available if they are not already, available sometime in the near future for veterans to download, to take, have their private physician or whomever the medical provider is fill it out and then they can submit it on that form. These are just kind of the prescribed forms that VA will recognize, they will know, it offers a number of kind of fill in the blank fields for the provider to go through and offer their opinion. I know that whether it is on our website, whether it is on our blog, we have a lot more information about Nexus letters, about DBQs in particular, and so please feel free to visit our blog, feel free to visit our website to get some additional information in this area.
Maura: I think one of the things you mentioned that is really important is making sure that the Nexus letters that veterans obtain do use the applicable VA standard of proof and as a procedural matter that they look like the type of exams that VA is used to accepting and so that kind of feeds into your point Mike about the importance of using the DBQ forms or the disability benefits questionnaires forms. As Mike said VA did remove them from their website. They have been instructed to put them back up on the website and we are not exactly sure when that is going to happen, but either way, we have a number of DBQ forms available at our website at cck-law.com if people are looking for a reference for those. So nexus letters are highly highly relevant and essential to service connection claims Nick the next mistake we want to talk with you about is the issue when claimants submit evidence that is not relevant to their claims and how that can be a mistake or a pitfall in the claim process?
Nick: Sure. So oftentimes, particularly with increased rating claims, a veteran’s job is to submit any evidence they can to show that their service-connected conditions have worsened or any case of service connection to show that they have a diagnosis of a condition, but oftentimes, rather than submitting any evidence that is relevant to their claim, they submit everything that they have, be at the entirety of their service records or three thousand pages of medical records and oftentimes, those medical records are going to contain relevant information including treatment for non-service-connected disabilities, surgeries for non-service-connected disability, so on and so forth, so it is not necessarily helpful to submit huge packets of three thousand pages of medical records to the VA because they might have a hard time digging through it and finding the evidence that is relevant to your claim, be it mental health notes or Orthopedic evaluation notes or so on and so forth. So whenever you are getting ready to submit this evidence to VA, it is a good idea to sort of look through everything that you have, make sure that it is irrelevant to your claims conditions in particular. Otherwise, it could cause VA to be delayed in reviewing your case because it takes so long to go through the unnecessary information or it could result in a denial because they overlooked the favorable evidence you submitted entirely because it got missed amongst the Sea of other things that were not relevant to the claims condition.
Nick: So when we are talking relevant evidence, we are talking about personal statements from you and your family members, both medical records from your current treatment or any service records that you have and again, just review the evidence that you are submitting, make sure that it is relevant and then submit it to VA all at once and if you can write a letter to accompany the evidence that you are submitting, pointing them in the direction of the things that you think are important or relevant, it is going to make it easier for VA to adjudicate your claim all at once and you run a much lower risk of them denying something simply because they did not see this treatment record or that treatment record. That is not to say that you should not submit anything that could be relevant. At the end of the day, veterans are not themselves doctors, so they suffer from several conditions that are related to their primary claims condition, which as we talked about earlier, VA you should in theory be adjudicating in addition to the primary claims condition and because veterans are not doctors, they do not necessarily know how one condition might be related to another. So more often than not, you are perfectly well served by submitting these additional records even if they contain some irrelevant information, but to the extent that you are able to, you should always go through and highlight the information that you consider to be important, especially if you have the opportunity to sort of highlight specific elements, like the elements of service connection that we talked about earlier, highlighting current diagnosis, highlighting evidence showing that your condition originated in service, and then making sure that VA has all the information they need to adjudicate the claim from there.
Maura: Great and that all is very related to the next mistake on the list, which is not knowing the law and not understanding the system. So from a substantive standpoint what Nick was talking about was making sure that your submissions to the best of your ability are limited to relevant information that VA is really going to need or want when they adjudicate the particular claim that you are asserting. Knowing the law is a really big part of that, as we were speaking about before, veterans will often file claims and lose sight of those three elements of service connection. If veterans are seeking disability benefits for, let us say, a headache condition or a head injury, they might focus a lot on their service records and how their service records mention a head injury or mentioned some type of head injury residuals, or they might focus on service records that is showing in-service event and it might be very clear to a veteran, a claimant, or their family members that their condition is due to service, but we cannot forget about demonstrating the other elements of the claim including the Nexus element. So I think not knowing or not understanding or really keeping in mind those three elements and making sure that your submissions really touch on all three can be a mistake. It is great if you have service records that pertain to what you are claiming and substantiate the fact that there was an in-service event, but again, it’s really important to be thinking about what are the elements of the claim that you have to prove. In the service connection context, it is those three elements. And so you want to make sure that what you submit is pertinent to all three that VA could pick up your file or after the development that they conduct could pick up whatever evidence is in the record and have evidence that speaks to all three elements, not just one or two, but all three and similarly with increased rating claims, veterans are often not aware of how VA rates disabilities. VA has a pretty complex rating schedule for numerous conditions in numerous sections of the code of federal regulations at title 38, all of those resources are helpful, so if you are filing a claim for a particular condition, it might seem like a daunting task to try to figure out what diagnostic code might apply to you or what rating evaluation criteria VA is going to be looking at, but if you can take the time to do a search or if you have a code sheet that VA has generated associated with one of your awards, it might list what code you are rated under and that code can take you to the criteria for that rating evaluation so that you can understand what VA is looking for.
Maura: So for instance the code for headaches is at 38 CFR 4.124A and that code talks about how different evaluations for headaches are based on how long your headaches last, how much they impair your ability to do occupational functions, they use the word frustrating, how frustrating the headache attacks are, how frequent they are, again, how long they last. Those are the types of things that VA is going to be looking for when they adjudicate your claim. If veterans are instead submitting evidence about what kind of medications they require for their headaches or other issues that might not be specifically listed in the diagnostic code, then that claim might not result in a favorable outcome because the evidence that was submitted does not really speak to the rating criteria. So that is definitely a way that can help with your increased rating claims by looking at the VA rating schedule and figuring out what are the things that VA really cares about. What is the type of terms that they were using so that I can try to understand what evidence might I be able to submit that speaks to these terms, that speaks to these criteria, these different evaluation levels? That really does go a long way we find. Sometimes veterans will understandably say “well, I think it would be best to provide VA with all of my medical records about my condition and that should show that I am entitled to an increased rating, but again if you are rated under a code that has very specific criteria, those medical records might not speak to all of the elements of the increased rating claim that you need to establish pursuant to the diagnostic code. So I would definitely recommend getting familiar with the law that applies to your claim. It can be a little bit challenging. It can seem daunting for people that have not gone through the process, but there are a lot of resources on our website, if you Google things if you look for things on the internet, you can usually find resources to point you in the right direction, and another thing that is important to know in addition to the substantive law is the new procedure or the type of appeal rules that apply. So if you are in the midst of an appeal process and you are not exactly sure what direction to go in, it can be very very useful to read up on the different appeal options that are available to you and what significance each of those appeal lanes carries. So we have a lot of resources we have talked a lot before about the different lanes for appealing that are available under the appeals modernization act. They have reformed their appeal system and for almost two years now, we have been operating in the new system where you have three paths that you can take if you want to appeal a decision.
Maura: Generally speaking, you could ask for a higher-level review, which does not allow you to submit more evidence. You could file a supplemental claim appeal which does allow you to submit more evidence or you could file an appeal to the board in any of the dockets at the board including one that does not require new evidence, one that does allow evidence, and one that allows a hearing. So there are so many different options available but what option you take is really a decision that you have to make based on what you intend to say or what you intend to submit. So it is really important to understand that if you are appealing a decision and you want to submit more evidence, you want to make sure you are picking the lane that allows you to do that. You would not want to select the higher-level review lane because that lane closes to the further submission of evidence and you would not want to appeal to the boards’ direct docket because similarly, that docket does not allow the consideration of new evidence. So as you can see there are so many different rules associated with the appeal options and it can be very very easy to make the wrong decision by not understanding what significance those lanes carry and what options are available. So if you are filing an appeal, I think this also applies if you are filing a claim, but especially if you are filing an appeal, it is really important to try to know the law that VA is going to be applying sort of the legal lens through which they are going to be looking at your claim, what elements they are going to be looking for and also to make sure that you are choosing an appeal path that allows you to do the thing that you want to do. If there is more evidence that you want to gather you want to make sure you are picking a lane that is consistent with that. If you have already appealed to the higher-level review lane, you cannot do that a second time, so that is another thing you have to be mindful of, you cannot choose that option twice in a row. So learning all of those rules, again, can seem daunting but it is really important, it can save you a lot of headaches on the back end and we have as we have been saying throughout a lot of resources on our website cck-law.com that outline a lot of the substantive legal topics and procedural rules et cetera. Mike, I am going to come back to you, the next mistake that we have here is something that you mentioned I think before is when veterans give up on their claims. So this can happen if VA obtains negative evidence. It can be very discouraging when that happens. Sometimes it can happen if you have appealed something multiple times, which is a reality for a lot of veterans who are pursuing benefits multiple denials is not an uncommon part of the process. So can you talk to us about how giving up on the claim can be a mistake and how people can avoid that?
Mike: Yeah, absolutely. This might be out of all of the mistakes that we have outlined today. Perhaps, this might be the most consequential. It is very easy I think for veterans and others to be confused by the system. It is time-consuming, archaic. It can really get you down if you are receiving a decision that is denial, after a decision that is another denial, that is on top of the fact that a huge portion of our veteran clients, they are just trying to struggle on a daily basis to manage their condition to deal with financial hardships to take care of their family. And so I think it is very easy to get a denial or your third denial and say that is it, I tried, I am done, I basically abandoning my claim, but I would say if you really think that is merit to your claim, it is really I think important that you appeal, you continue your claim and you keep pursuing the claim because like I said at the outset there are significant consequences to abandon the claim and oftentimes if you have filed a claim and you have been pursuing that claim with appeals ever since that initial claim if ultimately granted, you could be entitled to a significant amount of retroactive benefits dating back to that date of the initial claim. And so there is a lot at stake, service connection can oftentimes lead to securing other VA benefits that are very important to the day-to-day lives of veterans or clients and just in general such as health care benefits, such as education benefits, all of these other sorts of benefits in some sense to can stem from the compensation benefits that you might be pursuing. And so, while it is easy to be discouraged, I think it is important to know that this is oftentimes a long process. Many times, clients do receive a number of denials before they are able to obtain the right evidence, present their case in the appropriate light before the appropriate VA adjudicator in order to ultimately successfully have their claim granted. And so I think one thing, one mistake that we see that I see often times will be a veteran, they will give up on their initial claim that they will file, but then they will later file a new claim for the same condition and so that kind of abandoning of the original claim can have significant consequences again, in terms of the effective date that can be awarded for your claim. So for instance, a veteran may file for service connection for a back condition and then receive a decision that denies that benefit.
Mike: Veterans typically have one year to appeal any denial, but what we will see is instead of appealing that denial, they will essentially abandon or give up on that initial claim and file a new claim perhaps within that one year period for the same exact condition and so why this is problematic is because rather than appealing the initial denial and preserving that initial effective date, if a veteran submits a new claim, many times, VA will interpret that as a new claim, a new effective date, and while in a certain situation that issue can be corrected. In many others, VA will if the benefits ultimately granted, grant the condition from the filing of that second claim, and all along the veteran was still within that one year appeal period to actually appeal the initial claim denial and so, that leaves open the potential for veterans to not receive significant benefits that they would otherwise be entitled to but for the fact that they chose to abandon the initial claim and file a second claim for that same condition. And so like I said, there is a lot at stake, whether it is additional ancillary benefits like health care benefits, whether it is just monthly compensation and retroactive benefits that the veteran might be missing out on by giving up too early and just knowing that veterans have a right to challenge any denial. They can go out. They can obtain evidence. They can submit evidence. They can appeal. They can likely appeal again if necessary and under the new kind of procedural system that we are living in, the AMA system as they call it, there are a number of new and different options that veterans have to appeal any unfavorable decision. And so, whereas before in years past, it might have been a one size fits all very linear approach. Veterans now have a number of different options that might suit their needs and their claim better depending on the evidence that they need, the evidence that they have submitted. So I think it is just important for veterans to understand and for agents to understand accredited claims, representative to understand that oftentimes this process will take some time, it will unfortunately probably involve a number of denials and it will involve obtaining evidence, submitting evidence, making legal arguments and so, giving up on a claim can really have some significant consequence, particularly, if you do think that there is Merit to the claim.
Mike: The last part about why it is important not to give up on your claim is because there is help available, whether that is through service organizations, VA accredited Representatives, attorneys, self-help in a form of our website, blogs, information out there on the internet. There is a lot of help that is available to navigate the system. It is confusing. It is complex. It is time-consuming oftentimes, but there is a lot of help available. It is really important that veterans know they can reach out and obtain that help if they are struggling with their case or their claim for giving up on their claim.
Maura: And that was really the last point that we were going to make because it is tough. I am thinking about all the things that we spoke about and it is a lot of good advice about making sure that you get the right form and making sure you know the law and making sure you are sufficiently detailed in your claim submission, but also do not wait too long because VA will pick up on some of the details and make sure that you know the options to appeal and make sure that you go through the process of getting denial after denial and making sure that you keep appealing on time and saying what you need to say. It is a really tough process. It can be extremely discouraging. I think it is hard to overstate how frustrating it can be to receive denial after denial of a claim that you know has Merit that you really believe in. It can be even worse when you are getting denials based on the technicality and the new appeal lanes and everything else. It is really tough. There is a lot going on. There is a lot to keep in mind. And so Mike’s last point, I want to give you a chance Nick to offer any additional thoughts that you have is an important one that you do not have to go through this process alone. There are people available that can help and I think that is really important for veterans to remember.
Nick: And that is why we have it as our last primary mistake that we tend to see when handling these claims and seeing these claims come in the door is that veterans oftentimes do not know that help is available to them. They do their best to struggle through the claims process, but there are dozens of forms with dozens of sections that they need to fill out. There are different elements of service connection and many more elements that go into determining the proper rating for the condition and unless you have been working on and studying in the area of veteran’s law, you are just not going to be able to know all of those different things. So to that end, veterans should not give up. They should not just become frustrated with the process and quit. They are entitled to legal representation to assist them with both filing the claim and pursuing any appeals that they might need to appeal. So options for that representation included veteran service organizations, like Disabled American Veterans or accredited attorneys and the accredited attorney’s bit is especially important because VA has its own process through which it authorizes both attorneys and non-attorneys practitioners to represent veterans and you can actually go on VA’s website and do an accreditation search to make sure that the person that you are working with is accredited by VA, but once that you have confirmed that, these people are available to help you and you can often sign up with them using a VA form 2122A and once they are authorized to represent you before VA, they can take over some of the stuff that you might not necessarily be familiar with. They can help you to fill out individual forms. They can help you decide which form is the correct form to use to appeal to your condition and all of those things are available for your assistance if you need them.
Maura: Mike and Nick thank you so much for sharing your knowledge today. We are really hoping that this information was helpful to you all. Again, as we have said, please feel free to visit our website, visit us on social media for links to additional resources, all relevant to what we spoke about today plus some additional things that you might be dealing with in your pursuit of VA benefits and finally, thank you all for tuning in and we definitely hope to see you again soon. Take care.
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