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Top 7 Reasons Why VA Denies Claims

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Christian: Good afternoon and welcome to another edition of Facebook live from Chisholm Chisholm & Kilpatrick. My name is Christian McTarnaghan and today, I’m joined with Alyse Galoski and Alec Saxe to talk about 7 main reasons why VA denies claims. So, we’re going to try to keep this as tight as possible but we’re going to try to hit all 7 ways so you have a better understanding of maybe some of the road blocks that you’re going to face when you’re trying to get your benefits claim approved. So, one of the biggest ways I think that we all see our clients because we all practice in court, get denied is for service connection, right? They apply for service connection for a condition whether it’d be your right knee or psychological condition in some way and somewhere along the line, either the RO or the board is going to deny because one of those elements are missing. So I think we’re going to start right there.

So broad strokes, there are three elements to service connection that you have to show before VA will provide you or grant you service connection. Then you can get a rating and maybe get some benefits for that particular disability. So you need a currently diagnosed disability or a current, just a current disability. You need an in-service event, injury or illness and then you need a nexus between the two which is just a fancy way to say that you connect your current disability with the event or injury and service. So Alyse, why don’t you talk to us a little bit about that first element of service connection which is the disability element?

Alyse: Sure. So the first and foremost, it has to be a current disability. It has to be something that you are currently experiencing. One thing that’s like a common misconception, VA messes this up is that you don’t technically need to have a formal diagnosis. It is certainly easier if you do have a diagnosis to get service connected but the law says that you don’t need to have a diagnosis. The best example of this would be if you have chronic pain that’s not something that’s diagnosed. And it also has to be something that causes some type of functional loss. So you need to–

Christian: Or functional impairment.

Alyse: –or functional impairment. So you need to be able to show that it is impacting your day to day in some way, your earning capacity in some way, but that’s a big thing. It doesn’t technically need to be a disability–excuse me–a diagnosis, but it does need to be something that’s impacting your functional impairment. So, another thing is that it has to be something that’s related to service. So it can’t be something that’s hereditary or that you were born with, something like that. It has to be something that you can show was to the service.

Christian: Yes. So why don’t we just take a second to talk about that current disability elements? So could you maybe think of a situation where a veteran wouldn’t have a current disability? So maybe they had something in the past but they didn’t have something in the future?

Alyse: Sure. So a good example of that is if you see something that’s like a fleeting illness.

Christian: Okay.

Alyse: Say, you previously had a lot of gastrointestinal issues but you no longer have those issues.

Christian: Sure.

Alyse: It’s something that has been in remission, so you’re no longer a current disability on that. So you basically, once you’re in remission it’s something that you’re not current on.

Christian: Sure. So could you think of maybe a hypothetical or like a situation that you’ve encountered maybe in your practice, maybe a sort of a simple one where a veteran might even denied for lack of disability?

Alyse: Yes. I mean I think another one is also a lack of disability. You might see a lot with a psych. That’s a tough one because psych does tend to be much easier to prove when you do have some type of diagnosis. It’s difficult to do a psychological disability when you don’t have a diagnosis because it’s difficult to kind of explain the symptoms that you have. That’s a really common one. When you don’t have a certain psych diagnosis especially like PTSD. If you don’t meet all of the criterion, that’s a common thing.

Christian: Or you have anxiety but it doesn’t rise to the level of disability or diagnosis, yes.

Alyse: Right. Something that’s impairing you. There is some case law out there where we might potentially be able to show that if you don’t have a diagnosed psychological disability you could potentially get service connected for it, but that’s very much unsettled. So psychiatric conditions are a great example of something that you really do want to try and get a diagnosis for. In another example of a common thing that we see where something is not really current would be an orthopedic condition. A lot of times we’ll see somebody who was injured in service but they no longer or a doctor determines that, that injury that they had in service has been–

Christian: Resolved. Yes.

Alyse: –corrected and whatever they’re having now is totally unrelated. So that’s something that we see a lot too where they’re saying, whatever you had in-service is resolved. Your current arthritis is due to age. You see that a lot.

Christian: Sure. Just sort of a heads up, a lot of times VA gets confused with the diagnosis disability in the gulf war syndrome cases because that very, that regulation very explicitly says you can have an undiagnosed disability that is allowed to be compensated for under VA. So that’s another sort of pitfall that you might fall into if you are trying to get service connected for those conditions because they’re not all as a matter of law supposed to be diagnosed. So, all right we’ve talked about the disability. The second element is going to be an in-service injury. Alec, do you want to talk to as a little bit broadly, maybe explain to our viewers what that means.

Alec: Sure. So this is the second element of service connection. Again, that’s basically, did something happen in-service we’re looking for and occurrence of or an aggravation of an injury or a disease. So for instance, you tripped and fell or fall down the stairs. You’re involved in an accident but it can even be exposure to harmful levels of noise for instance for, if you have hearing loss or tinnitus or you might have been exposed to a traumatic experience. Again, that would be an event that you’re looking for that in-service incident or injury.

Christian: So it’s interesting that you use the word exposure because I think something that we wanted to note is, I think sometimes veterans get confused about whether exposure to Agent Orange, sort of what element of service connection might that help them get? What would you say to a veteran that was asking, “Which part of service connection does exposure to Agent Orange help me overcome?

Alec: Yes. So the common mistake often is a veteran who might have served in really any era now there’s exposure to different things but in Vietnam, obviously, that’d be herbicide agent, Agent Orange but even more recently in some of the gulf wars, there is burn pit exposures but the exposure itself is not a compensable disability that you get benefits for now that, that seems to make sense, right? It can lead to something various diseases and VA’s actually listed the number of what we call presumptive diseases where if you’ve been exposed to these various chemicals or agents in service, you might be a presumed to have these diseases if you indeed have the disease, that current disabilities we’re talking about. Yes.

Christian: Sure. So the disease obviously, would be what Alyse was talking about, which is the disability and the exposure would be the in-service incident, right?

Alec: That second element, yes.

Alyse: Don’t file claim for filing claim for Agent Orange because that’s just not a disability.

Alec: Sure, yes.

Alyse: You might say that you have a certain cancer due to Agent Orange but don’t just file for Agent Orange.

Christian: So, what happens or what can veterans do if they don’t have maybe records to prove, like service records to prove that they had an in-service incident?

Alec: Right and that’s often the case unfortunately that your service records personal or medical records won’t contain–

Christian: Because that might be a reason why VA would deny it.

Alec: Yes, that’s often a pretty common way that they would deny the in-service incident or injury element. That said, sometimes you don’t even need the medical evidence. At the end of the day, what you need is competent, credible evidence. This is the standard of that really got everything in VA and that could be a statement a non-medical or we call, lay statement. It’s coming from a lay person including yourself potentially, but if it is competent and credible and supporting of that second element that this incident or injury or event occurred, that is evidence that you could use to support that claim.

Christian: Sometimes VA would deny a claim even though the lay evidence should have been sufficient to show in-service incidents. So this is just all to say, this is a pretty complicated stuff. There’s a lot of different ways that you might be able to get denied. We’re trying to hit the broad strokes of some of the most frequent, but a lot of these cases I think, it’s going to be helpful to get some good advice from someone that might be able to help you out on this because the rules can be complicated and a little bit confusing at times.

So, we’ve gone over the in-service incident. We’ve gone over the disability. I always sort of think of it like a line, right? The in-service incident, you have your current disability, now you need something connecting that two and that’s referred to as nexus. That’s just a fancy word for a connection between your current disability and your in-service incident. Those nexus opinions come most frequently from VA. One of the reasons that your claim might be denied even if you have the evidence of in-service incident and you have the evidence of a current disability is the C&P exam examination, the compensation and pension examination will find that there is no connection between the two.

So frequently in VA, at least in my practice and I’d imagine yours as well, the board and the regional offices put a lot of weight in those C&P examinations. So, one of the things that is helpful to me as a practitioner is when there’s maybe a negative nexus opinion, the veteran provides some sort of lay statement sort of about the facts, surrounding maybe why. That’s not always going to– that always going to cure a negative nexus opinion but it might help or also some sort of other positive medical evidence that sort of talks to the connection between the two.

Anything that you all want to add before we move off of service connection?

Alyse: I mean, it’s going off your discussion about the compensation and pension exams, you can obtain a copy of that.

Christian: That’s true. You’re not guaranteed to get a copy unless you ask.

Alyse: Yes. So you should do that and you can challenge what’s in the examination. Sometimes we have seen veterans who say, “I didn’t say this during my examination or these certain tests where there’s results failed out, they never conducted this test.” So you can challenge them right by filing that with VA. You can obtain your own private examination if you would like to. But you, while it is extremely important to attend the C&P exams, you don’t have to only rely on that as the only evidence in your file.

Christian: Yes, absolutely. So another– and this is just a gigantic topic that we’re going try to distill down to a few discreet points, another main reason why VA is going to deny claim is because they don’t have the evidence they need to give you a favorable decision in the file. So what I think what we should maybe focus on here a little bit is, Alyse, you maybe want to talk a little bit about the duty to assist and how it relates to this.

Alyse: Yes, sure. So generally VA has a, what we call the duty to assist them. Means that they are responsible for helping you develop your claim. That means both obtaining records but it also means obtaining examinations that are adequate. So that means if you do obtain an examination like I just said that you feel is inadequate or doesn’t accurately describe your disability picture, it is VA’s duty to make sure that they are complying with that duty to assist. So that is something that they have to comply with. They have to make sure that they’re also obtaining any records that might be out there. It gets a little bit sticky because sometimes some of those records just aren’t out there.

Christian: Sure.

Alyse: But I believe we have other Facebook lives on that, that go more in depth on the duty to assist but very generally, the duty to assist is a duty that VA had to assist you.

Christian: Yes.

Alyse: In the development of your claim.

Christian: So, another huge part of veterans law is we’ve been talking a lot about service connection, Alec, is the increase rating. You maybe want to give a sentence or two about what an increase rating is and maybe an example of a hypothetical or something to that effect about why an increase rating claim might be denied?

Alec: Sure. So an increased rating claim is now where we’ve assumed that you have the service connected disability and now you are seeking more benefits because your condition has worsened. That’s simply, if it’s an orthopedic injury, a back disability or a knee disability, you might feel that in the years between your last, the last time VA gave you a rating for that disability, your symptoms are worse, your condition is worse. Maybe before you were walking a reasonable amount and now you will need the assistance of a cane or a walker or something like that. That would maybe be a little extreme but not uncommon at all. But these are, they’re seeking the increased rating for obviously a worsening of a condition. In terms of the ways that the VA will might deny those claims as well, it’s similar to service connection. Again, it’s going to come down to what the competent and credible evidence says, the medical evidence. They may order a new exam for you that the C&P examiner finds that your condition hasn’t worsened. It’s the same and they could rely on that to deny an increased rating.

They’ll also look through all the medical records that VA has a duty to assist to obtain and get a sense for your disability picture and the board has the prerogative to determine if it reflects a worsening or not. So, in terms of ways you can help with that again, that to the extent you see outside private medical practitioners. That’s one of the best ways to do it and you can let VA know about that and you don’t even need to provide them with the records necessarily. If you let them know that they exist and that they help to support your claim. Again, their duty to assist extends to the private field as well if you identify them [crosstalk]

Christian: Sometimes is a release, that’ll require you with some extra paperwork.

Alec: They send an authorization and you have to sign it because they are your private medical records but yes, that can help. Same with lay statements, again, and statements from your husband or wife who sees you’re worsening on a daily basis those are things that can lend to the increased rating claim.

Christian: Sometimes even when you do go out like you suggested and maybe get some private medical evidence from a treating physician, VA will still deny your claim because they don’t accept the private opinion for what it says. That’s another way that I think VA sometimes denies claims. They have the C&P examination like we were talking about before, maybe it’s an increased rating claim. The C&P says you’re at level zero. Your private opinion says, you’re at level five. I’m just making this up. That’s not really a thing.

Alec: Right.

Christian: Then the VA will accept the C&P examination over the private examination. Sometimes they have a lot of claims going on. There’s a lot of work to do and they’ll forget some of the reasons why maybe they can’t do that. So one of the big reasons I think you all probably see in your practice like I have, well, the private doctor didn’t review all the medical records, right? That’s not a valid basis alone. We’re over simplifying some of these things for them to find that a private medical opinion is inadequate, correct?

Alec: Yes.

Christian: Then another way that I think VA tends to find private medical evidence maybe a little less probative is to tag it for lack of rationale. So, these are things that I think we see every single day. So just sort of make you aware of if you are going to try to go out and get some medical evidence, just make sure that your physician insofar as here she is comfortable provides some explanations as to maybe why they’re coming to that conclusion about service connection like the nexus, or why your disability has progressed or is at level five severity and not level zero severity. So those are just some other things to be aware of when navigating your claim.

All right, so we’ve covered service connection. We’ve covered evidence and best we could. So another major way that we see our clients have their claims denied outright are not showing out to the C&P examinations we’re talking about. Do you want to talk a little bit about that, Alyse?

Alyse: Yes. So it is extremely, extremely important that you attend those C&P examinations. I say it every time that I’m on Facebook live.

Christian: I think we say that like in every single Facebook live.

Alyse: But it really is and the main reason for that–

Christian: You got to go.

Alyse: –is because VA, if you do not attend your examination can outright deny your claim. By regulation, they can do it.

Christian: Yes.

Alyse: Just if you don’t attend, they can deny your claim. So go and even if you don’t think they’re going to give you a fair shot like all of the other evidence we were just talking about you can still submit all of that stuff. But do, do yourself a favor and go to those examinations–excuse me. You can always get a copy of that examination and challenge it. You can always get a private doctor but if you don’t attend and they deny your claim off that, you’re–

Christian: Sometimes you’re stuck.

Alyse: You’re stuck.

Christian: In some cases–

Alyse: You really have to go.

Christian: –they have to look at all the evidence of record even if you don’t go, but in other cases they can just deny it in one sentence and it will be completely supportable by the law. It’s very hard to do a lot about that, for sure.

Alyse: So and C&P examinations, let’s just backtrack a little bit, they could both be for to identify etiology or what’s causing a claim– what’s causing a condition.

Christian: Yes.

Alyse: Also for increased rating claims so they’re both relevant for service connection and increased rating claims.

Christian: Absolutely.

Alyse: You can see them throughout your appeal even if you’ve already attended three, they might decide you needed to attend a fourth. Attend the fourth.

Christian: Yes, absolutely. So what might a veteran do if they happened to miss the C&P examination?

Alyse: Well, they can request another C&P examination and hope that VA sets– schedules another C&P examination or you can also submit your own evidence. But VA can deny a claim. You would have to, at that point depending on what stage it’s at, either file an appeal or Notice of Disagreement.

Christian: Yes.

Alyse: But again, your options can, depending on where you are procedurally, they can be quite limited. So it’s best to kind of attack this one on the offensive and attend the exams.

Christian: Let the regional office or the entity that scheduled your examination know immediately.

Alyse: Yes.

Christian: If you have accidentally missed an examination and try to see if there’s anything that you can do.

Alyse: Right. I think if you do explain why you missed it, I’ve seen in the past veterans explained why they missed it, a lot of times people have a good reasons why they missed it or they didn’t receive notice of the examination for example or for some medical reason, you could not attend or whatever. I’ve seen that happen. I’ve seen VA being forgiving about it. I’ve seen them reschedule an exam. But if you are the person who gets that rescheduled exam, definitely, definitely go to the rescheduled exam. It’s just gets even more, it just adds on.

Christian: Absolutely.

Alyse: But yes, no, don’t give up. You should definitely reach out and see if they’ll reschedule it for you when I’ve seen it happen so.

Christian: So, another major way is VA has a lot of forms. So anyone watching who submitted a claim, filed the disagreement, filed an appeal or any number of things knows that there’s a lot of VA forms. So Alec, do you want to talk a little bit about the importance of those forms?

Alec: Yes, you’re right, Christian. There’s a VA form for pretty much everything and it can be overwhelming even for us who deal with that on a daily basis. So in terms of some of the most important forms that are for specific benefits that you’ll need to submit for those benefits, the first thing that comes to mind is the form 21-8940. That’s a veteran’s application for increased compensation based on unemployability. So this is when you’re severely impaired functionally and you’re seeking the highest possible 100% rating because your service-connected conditions don’t allow you to work. There is a specific form for that. Again, it’s the 21-8940 that has to be submitted in support of that claim specifically.

Christian: If they don’t submit it or you don’t return it, VA might use that as a reason to deny your claim.

Alec: Yes.

Christian: So it’s important to send that back.

Alec: In terms of other forms, some are more recently now with, maybe you’ve seen in the news, with development in the Blue Water Veterans, these are the– as we talked earlier about the herbicide or the Agent Orange exposure being extended to veterans of the Vietnam era that didn’t go necessarily go on land, you know?

Christian: Yes, boots on the ground, yes.

Alec: Boots on the ground. They could have been in near offshore waterways. VA is working on extending that presumption of exposure to those veterans. In those cases veterans–

Christian: And anyone in the territorial area.

Alec: Right in the territorial waters, yes.

Christian: Yes.

Alec: I think we might have other Facebook lives on that.

Christian: Yes, absolutely.

Alec: Yes. So check that out.

Christian: Yes.

Alec: But yes, now, for those forms, you have to file a supplemental claim and that’s a form 20-0995. So that would be different than filing a new claim that the standard 21-526EZ that’s the standard claim to initiate benefits specifically now for these in light of the blue water legislation to file that supplemental claim form.

Christian: Yes. Then also some of this, so we have the Appeals Modernization Act. It’s in full swing. We have plenty of information on our website and other Facebook lives about that but the legacy system for instance something that always comes to mind is you got to file the NOD. If you don’t file it on the NOD form, then it doesn’t count as a valid NOD and you can Notice of Disagreement and you can lose your right to continue to appeal that case. So that’s another example that I always sort of think of. The VA 9 is another one and you can’t file a VA 9 instead of an NOD. So those types of forms are incredibly important for a veteran to be able to continue on their case and they will deny it. VA will deny it if you don’t file the right form. So, that’s sort of leads into another reason why claims might be denied out right. It’s failure to file the form timely, in a timely way. So, there’s a lot of rules that go with this. But, there’s also now there’s rules for the legacy appeal system and there’s rules for the Appeals Modernization Act system. So I’m going to start with the easy one and then you guys can go from there. In the legacy system, you have one year to file a Notice of Disagreement with the rating decision that you disagree with. One day late and that doesn’t count is a valid NOD and then if you use the wrong form, that can cause you problems too. So any other relevant deadlines that we might want to…

Alyse: In the legacy system?

Christian: Sure, either.

Alyse: Yes. I mean, so you have one year as you’ve said for the appeal? Right, I’m sorry.

Christian: Yes. Yes, to file the NOD after the rating decision.

Alyse: You also have 60 days for your VA 9 after the Statement of the Case.

Alec: So that’s the legacy, yes.

Alyse: It’s all legacy. Some of the stuff is going to start to become irrelevant soon.

Christian: Sure.

Alyse: When we’re going to start and move into that AMA system where you can pick different lanes. The Supplemental Claim Lane for example, you have one year.

Christian: Yes.

Alyse: Higher level review, you also have one year. If you do a board decision appeal and you have a supplemental claim in the board decision lane, one year.

Christian: Yes.

Alyse: You can appeal to the CAVC within 120 days, all of this stuff is on our website.

Christian: Yes, that’s true.

Alyse: So you don’t have to memorize it and usually I’m looking down. If you’re in that hearing docket, you have 90 days. If you’re submitting evidence on the board evidence docket and you have to file an NOD, you have 90 days for that. So that’s different than previous deadlines.

Christian: Yes.

Alyse: Like I said, go online. I also advise that you contact your VSO or your attorney or your other agent.

Christian: Yes.

Alyse: They can be very helpful with this kind of really tricky procedural stuff especially now that we’re changing systems and VA is not going to get it right. It’s going to be very easy for veterans to be a little bit confused by it.

Christian: Yes.

Alyse: Because we’re all kind of—

Christian: We’re all learning it at the same time.

Alyse: Yes. There’s new regulations actually being put in place still.

Christian: Yes. Yes.

Alyse: So it’s still kind of a regular– it’s a system that’s under construction, if you will. So, it is always good to be extra careful when it comes deadlines and to forms.

Christian: So Alyse took all the deadlines, Alec.

Alyse: Sorry.

Christian: So far, I think, we’re just about ready to wrap up here. So for our concluding remarks, I’ll start with you, Alec. Is there anything in particular you want to add before we finish or anything that you want to highlight based on what we’ve talked so far? Talked about so far.

Alec: Well, I guess I’ll use the time to briefly summarize again those crucial three elements of service connection which the discussion centered around today and the reasons why VA might deny your claim and that’s again, submitting evidence of a current disability. Again, not necessarily diagnosis but a disability. Second of an in-service incident occurrence or aggravation of an injury or disease. Then third is that nexus from current disability to service, so just remember that.

Christian: Alyse, anything?

Alyse: Yes. I think, one bit of evidence we didn’t really talk that much about today, it would be lay evidence.

Christian: Sure.

Alyse: Lay evidence is really great. It can really help you especially with developing, first of all, a current, that current disability element of service connection. It isn’t great for the nexus element.

Christian: Sure.

Alyse: But with increased rating claims, it is great. It’s a very helpful way to establish how severe your disability is. So we’ve been talking a lot about more medical evidence and stuff like that today. So I did just want to bring it back and remind you that you can always submit lay evidence of your own or your loved ones who’ve observed the conditions that you deal with on a day-to-day basis, can also submit evidence then they can also help you claim.

Alec: Yes. I would go to the in-service element as well. If you have the fellow service members that you keep in touch with that might have been through the same experience as you. Maybe a traumatic incident, that could help for corroborating your PTSD stressor or any mental disability stressor that was based on traumatic event, they were there. If they witnessed you fall or even constantly complaining, that counts too if you’re complaining of symptoms repeatedly and you have another service member that you’re in-touch with that, might be willing to submit a statement on your behalf, you know? He snored, or not snored. I don’t want to say snored but for sleep apnea, it gets the little complicated but, he saw you waking in the middle of the night, restless all the time.

Christian: Sure.

Alec: All that, complaining about knees, so those types of things as well.

Alyse: Yes, absolutely.

Alec: Yes.

Christian: So I think that yes, in all of our– because my comment was going to be very similar I think. As attorneys that practice in a close record, I mean one of my favorite things is when a veteran submits those lay statements along with the reasons why we went over and would be denied come from C&P examinations. So make sure that if you get your C&P examination or you go, there’s something that you didn’t like about it or some clarification you needed, make sure you reach out to VA. Make sure you submit a statement, so that’s going to help sort of maybe undermine a little bit of the power that the maybe they C&P examination that might not be as favorable to you. But, again, just to know, sometimes they are totally favorable and then that you wouldn’t be denied so you wouldn’t need to watch this Facebook live. But if that’s all that you guys have, I think we’ll just thank you guys, for tuning in.