Top 8 Disability Claim & Appeal Tips
Courtney Ross: Good afternoon, and welcome to CCK Live, which is Chisholm Chisholm and Kilpatrick. I am Courtney Ross and joining me today is Kayla D’Onofrio and Kaitlyn Degnan. Today, we are going to be talking about the Top Eight VA Claims and Appeals Tips. We are going to walk through eight different tips to keep in mind if you have a claim or an appeal pending with VA. But before we jump into the specifics, I just want to kind of lay a foundation for what is required for VA benefits. Typically, for compensation or disability benefits, a veteran is seeking compensation for a condition that they believe is related to their service. So they are seeking to get that condition service-connected. To get a condition service-connected, there are three specific elements that you have to establish. The first is an in-service event, injury, or illness. The second is a current diagnosis of a medical condition or disability. And then, the third is a medical nexus that connects that in-service event, injury, or illness to your current condition. So that is kind of the foundation for getting benefits from the VA. Just wanted to keep that in mind as we go through these eight specific tips in the presentation today. The first one is to understand the basics of VA’s disability system. Kayla, can you talk a little bit about what I mean by that?
Kayla D’Onofrio: Yeah, absolutely. In understanding the basics of VA disability, there is a lot of different things to keep in mind, and we are going to dive into a lot of different topics today. Understanding this kind of fundamental basics of how the system works is going to help, take away a lot of the stress that comes along with filing those claims and appeals and all the intricacies of the system. The first thing to keep in mind is how effective dates work. In order to get the earliest possible effective date, you want to file your claim as soon as you possibly can. Typically, the way that effective dates work, VA will grant your disability from the date of claim or from the date of diagnosis whichever is later. So you do want to try to get that claim in as soon as you are able to. Another thing to keep in mind is the different types of evidence that go into filing claims and that you need for certain appeals. We are going to dive into different kinds of evidence and when they are important and why they are important a little bit later in this discussion, but just understanding that there is a lot of different evidence that goes into the entire process. There is also a lot of different forms that the VA requires like filing claims, there are different forms. Filing appeals, there are different forms. Filing for different issues, there are different forms. The VA does require a lot of different forms. If you do not use the correct one, they tend to not accept claims or appeals and they will take it back or reject it, ask you to file it on proper claims. It can cause delays, so understanding which forms are important to which part of the process in VA, can be really helpful. We do have a CCK Live discussion where we dive specifically into different VA forms. I definitely recommend taking a look at that. We are not going to dive too deep into that today. And finally, just understanding the VA appellate process as a whole. One thing to keep in mind is right now, there are currently two different appeal systems in place. The Legacy of the appeal system is still kind of in place for some of those older claims that are still going through and that is kind of the traditional claims process. You file on a claim, get a rating decision, notice disagreement, so on and so forth, but the appeals modernization system is also in effect. It has been in effect since February of last year. In both of those different processes have an entirely different appeals process, different forms that need to be filed, different deadlines so it is important to keep in mind that you do need to follow whichever appeal system you are in and understanding the differences of both of them. Again, we are not going to dive too deep into those today. We do have separate CCK discussions that you can certainly take a look at that gets into a little bit more detail, but just understanding that there is a difference between the two and it is important to know what those differences are.
Courtney: Thank you, Kayla. I think that is a great point because there are some significant differences as you point out. We do have a lot of resources on our website and some videos on our YouTube channel that really break down the appeals modernization system in comparison to the Legacy so I would definitely encourage you all to take a look at that information if you are looking for more specific information on some of the points Kayla hit in AMA versus compared to Legacy. Our second tip is to keep VA updated. Kaitlyn, can you talk about what types of information veterans should be aware of in terms of keeping the VA up to date and what are possible consequences if a veteran fails to update VA?
Kaitlyn Degnan: Of course. It is really important to keep VA up to date about different things that might be changing in your life such as moving to a new address if you get a divorce or if you get married because these things can negatively impact your claim. So you should always keep VA up to date of your most relevant address. And the reason for that is, not having the right address can cause the VA to send a rating decision to the wrong address. You can miss a deadline. You could miss VA correspondence that you need to respond to. It is just always best practice that anytime you move, anytime your address changes, one of the first things you should do is let VA know about that. Another important piece of information to keep the VA up to date is dependency status. If you have a child, if you get married, if you get divorced, if your child turns eighteen but they are not going to be in school anymore. This is important because any change in your dependency status could result in an overpayment, which you will likely have to pay back. So in order to avoid that and you sort change in dependency, best practices to keep the VA up to date as soon as you can. The third thing that is really important to keep the VA up to date is the medical status. Are you receiving new treatments for our service-connected disability? Did you attend an examination? Is there any sort of progression or change in your condition that is relevant to your claim? That information that you are going to want to let VA know about right away, especially if you are not receiving that care to be a facility.
Courtney: Thanks, Kaitlyn. I think the first point you made about updating VA with any new address is especially important and it transitions well into tip number three, which is to be aware of deadlines. This is an incredibly important one. If you have a claim or an appeal that is pending rather and you miss a deadline in terms of filing an appeal with that decision, you are at risk of your claim stream dying out. Essentially, you are going to lose the potential earlier effective date and might have to start over and file a brand new claim in any eventual grant would only go back to that claim. Just to echo again what Kaitlyn said for that reason alone, it is really important that you update the VA with an address so that you are not at risk of missing the deadline. To also echo what Kayla said earlier about things are different in the Legacy system versus the appeals modernization system, I am just going to generally outline some of the appeal deadlines in each system. But again, I would really encourage you to take a look at some of the resources on our website and the number of the videos that we have that really breaks down, especially the appeals modernization system because the deadlines are different bowl for filing appeals and in some procedural lanes, there are deadlines to submit evidence. So you just want to be aware of that. But generally speaking, if you file a claim today and you get an initial decision on that claim, you will have one year from the date of that decision to file an appeal. You have three-lane options under appeals modernization for appealing that. You can file what is called the Supplemental Claim by doing relevant evidence. You can request a Higher-Level Review or you can file a notice of disagreement directly to the Board of Veterans’ Appeals. If you select a Higher-Level Review or Supplemental Claim option, any subsequent decision that you receive will still be at the regional office level and you have a year from the date of that decision as well to file another appeal. If you file a notice of disagreement to the Board of Veterans’ Appeals, your next decision will be a Board Decision. With the Board Decision, you have two options. You have one year to file a Supplemental Claim with the Board Decision or you have a hundred and twenty days from the date of the Board Decision to file an appeal to the US Court of Appeals for Veterans Claims. So that generally is AMA. Again, that is a very broad outline of the deadline for appeals in AMA. In Legacy, it is a little bit different. If you do still have appeals that are pending in the older system, it might be an appeal that is on reman, currently from the Board of Veterans’ Appeals, and you are even going to receive a rating decision or what is called a Supplemental Statement of the Case. The deadlines are different. Again, if you receive a rating decision, you will have one year. If you receive a Supplemental Statement of the Case, you will have thirty days to decide if there is any additional evidence you want to submit before it gets back to the board. There is also a small window of time to opt into AMA if you would like to.
When you do get the Board Decision in Legacy, you only have one option and that is a hundred and twenty days from the date of that decision to appeal to the US Court of Appeals for Veterans Claims. I know that are a lot of different types of decisions and lanes and numbers for different deadlines that I just kind of outline. So that is why I again, I just want to encourage you all if you are looking for more information, and it kind of a more detailed breakdown of deadlines in Legacy versus AMA, please do take a look at other resources we have in our website that will get into more detail about that. So tip number four, this is a really important one as well. Kayla, can you talk a little bit about being honest with your healthcare provider and why this is really important?
Kayla: Absolutely. It is really important to maintain a sort of an open line of communication with your doctors about your conditions. You really want your medical records to accurately reflect what your condition looks like and the severity of it. VA is going to use medical records as a pretty vital piece of evidence when they are deciding on your claim. When you are talking to your doctor, you do not want to over-exaggerate your symptoms, but you also do not want to downplay your symptoms. VA is really going to use those when they are looking at specific things like your disability rating and how highly they can rate you. If you are downplaying your symptoms, they are only going to rate you based on what you are reporting. You could potentially, have a lower rating than what you are entitled to. On the flip side of that, if you over-exaggerate your symptoms, that can also negatively impact your claim. So you do not want to do that either. You do just want to be honest about what you are currently going through. When you are having these sorts of discussions with your doctor, it is important to tell them what symptoms you are currently experiencing and go into detail about those different symptoms. Even if it falls outside of what you think the discussion is that they do not explicitly ask you questions about it, it is good to offer that sort of information and talk about different sort of pain levels that you are experiencing whether the pain is worsening, or maybe it is getting better, or maybe it is just staying the same, still tell them what the severity looks like on a regular basis. And also tell them how they affect your ability to function in everyday life. It is not usually enough for the VA to just kind of look at the severity alone. They really want to see how it affects you and how it affects your ability to function. When VA specifically is looking at things like unemployability, that is what they are looking at. They are looking at both the physical and mental limitations that are involved in any sort of disability and keeping in mind that physical disabilities can certainly have mental limitations and vice versa. Talk to your doctor about all the different symptoms that you have and how they affect your daily life and be honest with them if you have any other health concerns. Sometimes, those health concerns can be related to the conditions that you already have benefits for and it can potentially be something that you can get additional benefits for, so tell them what your entire disability picture looks like. You do not have to kind of limit the scope of your discussion, feel free to offer more information than maybe what that discussion originally entailed.
Courtney: Thanks, Kayla. So talk a little bit about again, the importance of being honest with your healthcare provider. Your health and your medical records are usually a big or a significant part of what VA is going to look like in adjudicating a claim or an appeal that you have pending. The other significant piece of medical evidence that would be able also to rely on is what is called the Compensation and Pension examination or C&P exam. Kaitlyn, tip number five is really to attend the C&P exam that would be scheduled for you. Can you talk a little bit about why that is so important, and if there is any overlap between some of the information Kayla shared about how it is important to be honest about your symptoms with your private healthcare providers, but also at a C&P examination?
Kaitlyn: Yes. A lot of the same rules apply to attend your C&P examination as applied to work with your healthcare provider. A C&P examination is a medical exam that is ordered by the VA to assess usually the etiology of the condition that you are claiming service connection for or the severity of a disability that you might be seeking an increased rating for or TIU or those kinds of benefits. VA will schedule a C&P exam, it is part of their duty to assist if they require more evidence if this is on your claim that is why they do schedule those and it is very very important to attend those C&P exams. When VA is deciding whether or not to grant your benefit, they put a lot of emphasis on the results of that exam when they make that decision. If you do not go to the C&P exam, VA is likely to deny your claim and they can do that in certain situations. So again, it is very very important to attend the exam. When you are getting ready for your exam, there is a couple of things that you want to think about, things that you want to discuss with the examiner. Know what condition you are being examined for and prepare to talk about again, as Kayla said, “How it impacts your everyday life?” The examiner will talk to you about your symptoms, but it is also important to make sure that the examiner knows how is this affecting you on an everyday basis, how is it affecting you at work, how is it affecting you at home. These are all you know important pieces of information that can help them with the examiner’s opinion. And again, that examiner is likely looking either for the etiology of a condition for service connection purposes, or it might be looking for the severity of that condition for an increased rating purpose. If VA does schedule you an examination and you are unable to attend, reschedule like you can contact VA in order to do so and you should do so as soon as you know that you would not be able to go. Additionally, you should submit all medical evidence to VA with your claim prior to the examination and that is because the examiner is supposed to review the record when they render an opinion or do an examination. So all that information is important for the examiner to know as well. And again, as Kayla said, “Honesty is your best policy when you are attending a C&P examination,” so do not exaggerate your symptoms, do not downplay your symptoms. You want to avoid using general terms such as, “I am doing well,” because that could be marked in our report and it may not be helpful to your claim. You also want to avoid malingering which is again, exaggerating your symptoms or otherwise embellishing your disability. Again, that would likely affect your claim negatively in the long run. So you are going to want to avoid doing that. And then, after the examination, ask VA for a copy of it, the copy of an examination can help your appeal because you can look at it. Is there anything in the examination report that you feel is inadequate? Do you feel that the examiner missed anything? You can challenge that C&P examination by submitting arguments to VA on that point. It is important to get a copy of that. You can also submit your own independent medical records that might counter something that said in the C&P examination. We have some previous videos and website posts about how to get a copy of your C&E examination. If you are interested in doing that, we would encourage you to look at that as well.
Courtney: Tip number six is to obtain a copy of your claims file or what is sometimes referred to as your C file. Basically, your claims file is documentation of all the correspondence between you and the VA so it is going to include things like copies of your service records, including a copy of the veterans, form DD-214. It is going to include any service treatment records, any private treatment records that you submitted to the VA or VA has requested, government medical records. If a veteran treats it a VA Medical Center, we just talked about seeing PA exams and the importance of them and be as adjudication process. You can request copies of an individual exam, but copies should also be included in your claims file so you can find them there as well. Any statements or other private medical evidence or private medical opinions that you might have submitted, all of that should be included in your claims file. Requesting a copy of it from VA is a good way for you to assess what the VA is looking at, right? Because that is what they are using when they are deciding your case. You will be able to see exactly what is in the file, we talked about those three elements of service connection at the beginning of the broadcast right? You need a current diagnosis, evidence of an in-service injury, or event, or symptoms, and then, the medical nexus. You want to review your file and be able to outline to VA wherein the file you can show that those three elements have been established. The more that you know your file and what is in there, the better arguments that you are going to be able to make to VA or you are going to have a sense of what is missing in the file to be able to establish those three elements so that you can figure out what else you might need to submit to VA. That is really important to keep in mind as well. You can request that directly from VA. I will say that sometimes the timing to get it from VA can take a little bit of time. So just be patient with that as well. I think that is a nice lead-in to tip number seven, which is submitting evidence relevant to your claim. Let us assume that you have your file and you are kind of doing your assessment as to what evidence you might need. Kayla, can you talk a little bit about tip number seven and submitting evidence relevant to your claim?
Kayla: Yeah, absolutely. The evidence that you want to submit to support your claim is really going to be highly dependent on what you are claiming. Different sorts of claims and really different sorts of processes are going to require different evidence and different things that are going to be supportive. Some of the most common forms of evidence that we typically refer to are things like service records whether medical or personal, they can be really helpful for claims. Medical records, both private and VA treatment records, those Nexus letters from doctors that establish that link between your disability and your time in service or another service-connected disability, those are pretty vital information that the VA needs. As Courtney was talking about earlier, one of the essential pieces to getting service connection, granted for the condition. Lay evidence can also be an incredibly powerful tool for a lot of different claims whether it is from you as a veteran filing your own claim for disability benefits or from family members or friends or coworkers or service buddies. Anyone who can really attest to either witnessing an event or witnessing your symptoms on a regular basis, those can be really helpful, or testimony from experts can also be great like vocational experts in the case where you are trying to get the unemployability rating. Those can be really great in terms of determining whether those limitations that you have discussed in your medical records, actually do translate to being unemployable. Medical experts as well again, kind of looking at that nexus, but also providing opinions on the severity of your conditions. Those are all great pieces of evidence, but the type of claim that you are submitting is really going to be important in determining what kind of evidence you need. As I said, if you are going for a service connection something like service records and that nexus letter are going to be particularly important pieces of evidence whereas if you are going for an increased rating that nexus letter is usually no longer essential. Really depending on what you are trying to get and what benefits you are seeking, the different sort of evidence is going to come into play. It is also important to keep in mind that certain claims and issues do require specific evidence. Just a couple of examples that we are going to go through today for PTSD specifically if VA does require evidence of a verified stressor. So again, this is where something like those service records can really be important in showing that you did actually experience the incident that caused your current diagnosis of PTSD. It is a little bit different from any other psychiatric disability that you can claim and that VA really does require that evidence. For TDIU or Total Disability Rating Based on Individual Unemployability, VA requires that you file what is called a VA form 21-8940. So again, talking about all of these different forms that VA requires, this is a really important one for TDIU specifically. That form does ask for information about your employment background, your educational background, things of that nature just to kind of get an idea of what your work history looks like. For claims related to dependency and indemnity compensation or GIC benefits, VA is going to require evidence of the veterans’ death so that be the death certificate that shows the cause of death and the date of death to be able to properly adjudicate that claim. They also need evidence of your relationship to the veteran. If you are there surviving spouse, the work requires a marriage certificate. If you are a dependent child or parent, a birth certificate may be what you need. But again, we are just kind of scratching the surface of all of these different claims today. We do have separate CCK Live discussions and blog posts that I definitely recommend taking out and other resources that go into a whole lot more detail than we are going to talk about today for all of these different sorts of claims.
Courtney: Thanks, Kayla. I think you are kind of echoing a lot of the tips we have had already today. The facts of everyone’s case is different and the facts are really going to determine as you said, the exact type of form that VA requires, certainly the deadlines in the cases. And so, understanding the VA system, understanding the types of forms, understanding what is in your
file, all of that stuff is really important to be able to figure out what type of evidence you should be submitting to get a grant of benefits. So that is all really helpful information. So our eighth and final tip, Kaitlyn, I am going to turn to you, is really just asking for help if it is needed. As Kayla said, we have kind of just scratched the surface here today and I feel like this in and of itself is a lot of information and so, do not give up and ask for help if you do need it. Kaitlyn, I am going to turn to you. You should be going to add some additional thoughts on that last tip.
Kaitlyn: Do not forget that you earned these benefits. It is worth it to keep after them. It can be incredibly frustrating but it is definitely something that you are going to want to keep up with. VA processes are very complex. They can be very frustrating. You do not have to go at it alone. There are veteran service officers and accredited representatives and attorneys that can help you with filing a claim, filing an appeal, etc. So look for help where you need it. VA claims are wrongfully decided every day so it is important to be persistent. If you are looking for more information, our website has tons of resources, infographics blogs, videos, other posts that can provide you with some information that might help you along.
Courtney: Thanks, Kaitlyn. I think that is really the perfect way to close out today’s broadcast. Thank you all for joining us. This has been CCK Live, which is Chisholm Chisholm and Kilpatrick.
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