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You feel you are entitled to Veterans Affairs disability benefits, so you filed a claim. Probably months ago. And you have been patiently using the eBenefits website to track the progress of your claim. Then you receive your letter from the VA which says that your claim has been denied, known as a rating decision. Now, what do you do?
Do not get angry or frustrated. Studies have shown that some Veterans Affairs Regional Offices (VARO) deny as many as 80 percent of the initial claims for Gulf War-related illnesses. VA offices want claims that are as complete and correctly filled out as possible. VAROs will often reject claims because of the smallest mistakes.
The good news is that if you have received a letter from the VA denying your initial claim, you can appeal that decision.
How Do You Appeal a Denied VA Disability Benefits Claim?
Appealing a denied VA disability claim can be a long and complicated process — you need to use particular forms and take certain steps. Here is how to file an appeal:
1. File a Notice of Disagreement With the VA Using Form 21-0958
In the past, all a veteran needed to do if they wanted to appeal a denial letter was to write a personal letter notifying the VA of that appeal and write “Notice of Disagreement” (NOD) on the top of the letter. That all changed in 2015 when the VA said that anyone who wanted to appeal a VA decision needed to do it using VA Form 21-0958.
2. You Have One Year From the Date of the Letter to Appeal
This is a critical detail — the year in which you can appeal begins on the day the letter was sent to you, not on the date you received it. So if the letter was sent on March 26, 2018, and you received it on April 5, 2018, you have one year from March 26 to appeal. In any case, you should not wait until the last second but appeal as soon as you are ready.
3. You Must Be Specific About Why You Disagree With the VA’s Denial Letter
In the past, veterans’ advocates and attorneys generally advised veterans who wish to appeal a denial letter to be as general as possible in their NOD. They did not want veterans to limit themselves by being specific about the possible reasons for their appeal. They felt that by saying merely that you disagreed with all of the reasons in the denial letter kept a veteran’s options open.
That is no longer the case. With Form 21-0958, you need to list the specific reasons why you disagree with the VA’s denial letter. Only the reasons that you list on the form will be considered in the appeal. So if in your original claim you listed PTSD, a leg injury and loss of vision in one eye as the reasons for your disability claim, but you only want to appeal on the eyesight decision, you need to say that specifically in the NOD.
4. Be Specific but Cautious
While the VA now requires you to list the specific disabilities ratings in the letter of denial with which you disagree, be careful not to go into too much detail about why you disagree. Use broad language when completing your NOD. If you make the language too specific, there may be medical evidence that you cannot use in your appeal.
5. Include a Cover Letter
Even though you must use a particular form, it is still a good idea to include a cover letter. In your cover letter, write “Notice of Disagreement” at the top. Be specific about the decision you are appealing. For instance, using the example above, write that you are appealing the March 26, 2018, decision. Include your name and your VA file number. Ask for a Statement of the Case (SOC) that you can use if you file an appeal to the Board of Veterans Appeals (BVA).
6. File the NOD at the Correct Office
Make sure you keep a copy of the NOD, Form 21-0958 and the cover letter. Sign the original, and file it at the regional VA office from which you received your denial letter. If that office says your file has been moved to another office, get the address, send all your forms and paperwork by certified mail and request a return receipt. You want to make sure you have proof that you filed on time.
Since the VA is now so specific about how it wants appeals made and what needs to be in them, it is smart to work with a lawyer familiar with VA disability claims who can make sure that your appeal is prepared in a way to give you the best chance of success.
What Type of Appeal Should You Request?
When you are filling out form 21-0958, you will be asked to select the type of appeal you wish to make. You must choose between making an appeal to a decision review officer (DRO) who is located at your regional VA office or a traditional appellate review. You can also ask for a DRO to review your file and they will then decide your appeal, or you can request a hearing before the DRO.
It is in your best interest to select the DRO process. It has several specific advantages over making an initial appeal to the BVA.
1. The Time Factor
If you select a traditional appeal review, a DRO or a ratings veterans service representative will review your appeal. They will only be allowed to reverse a denial if they find a clear and unmistakable error. They will prepare a rating decision once they review your claim. If they deny your claim, they will send you a SOC which will give you the reasons why they rejected your claim. It can take months or even years before you receive a SOC.
If you select a DRO, your decision will be made much faster. It still may take as long as nine months from the time you select the DRO until the decision is made, but nine months is certainly better than a year or longer.
2. The Way a DRO Review Is Conducted
When your claim is reviewed by a DRO, they will look at it as if no decision had ever been made about it before, a process known as a “de novo” review. And they will consider any new evidence you have to offer about your disabilities.
3. The Informal Phone Call
Form 21-0958 allows you to select whether you want to receive a call from the DRO who will talk to you about your NOD. This is a real chance for your attorney to find out more about what evidence they believe is lacking in your original claim, and what evidence needs to be submitted to support your appeal. In most cases, the veteran should not attend this informal phone call or conference because then it becomes more like a hearing. And that means that the DRO needs to follow specific rules, such as taking an oath. When the conversation is only between your representative and the DRO, it is easier for them to talk about important issues.
If you want to improve your chances of success significantly, take advantage of this informal phone conference.
4. If the DRO Denies Your Appeal, You Can Still Appeal to the BVA
A DRO denial does mean that it will take much longer for you to hear about a BVA decision, but by taking the DRO review, you give yourself an extra opportunity for success. And if you are denied, you can still appeal to the BVA.
Submitting New Evidence to the DRO
The entire appeals process on a VA disability claim is an open one, which means you can submit new evidence at any time. Therefore it is crucial for you and your representative to find new evidence that the DRO can use to prove your claim.
Many types of new evidence can be submitted:
Medical notes and opinions from your doctors
Statements from family members or friends who are aware of how the disability is affecting your life
A personal statement that you can make that outlines exactly how the disability has affected you personally, especially the way it has limited how you function day-to-day
Pharmacy records that show the medications you need
Statements from your bank that show how your disability has affected your and your family’s earning ability
X-rays or other scans by your doctor
Even pictures that show you before and after suffering a disability
All your military records
Preparation Is the Key to Success at a DRO Hearing
An actual DRO hearing may only take half an hour. On other occasions, it may take several days. It truly depends on how prepared you and your representative are when you go into the hearing.
That means the real work needs to be done beforehand. You and your representative should go over all the evidence you have submitted to the DRO and also take a few minutes to do some role-playing. Let your representative ask you questions. Basically, practice a hearing. This will help you feel more comfortable during the actual hearing and allow you to give better answers which will also improve your chances of success.
What Happens If My Claim Is Denied by a DRO or by a Traditional Appeal?
It takes about a month after the DRO hearing for a decision to be rendered. If the DRO denies your appeal, you will eventually receive a SOC. This explains why the DRO rejected your NOD appeal and will form the basis of your appeal to the BVA.
Once you received it, you have 60 days to file a VA Form 9, which will likely accompany the SOC that is sent to you by the DRO, to continue your appeal. In your appeal, you must identify the error of fact or of law that you think the DRO has made. You also need to state the benefits you believe you should be eligible to receive.
If you decide to go the traditional appeal route and your claim is denied, you will also receive a SOC and a copy of Form 9 and will have 60 days to appeal to the BVA.
Use Form 9 to explain why you disagree with the DRO’s decision and to present any further evidence or support for your case. Remember, it is an open record process which means that you can submit new evidence at any time to support your case. But when you are preparing Form 9, try to submit all of you new evidence at the same time. If you realize in a month that there was something you forgot to add and you submit the new evidence, a new Supplemental Statement of the Case (SSOC) must be issued, which lengthens the appeal process.
Form 9 also gives you the option of whether you want to have a live hearing in front of the BVA. You do not need to have a live hearing. The BVA can decide your appeal based on the evidence that you submit when you explain why you disagree with the DRO decision.
If you request a hearing, you can do it either by a video conference, at a local VA office or in person in Washington, D.C. The small print on Form 9 advises you that if you choose to ask for a board hearing, it will delay a decision, and if you ask for an in-person hearing, it will significantly delay the decision. If you still want to do an in-person hearing, selecting a video conference may be your best option. About 25 percent of veterans choose to go before a BVA law judge.
After you file your Form 9, you may have to wait several months or longer for your regional VA office to transfer the file to the BVA. You will then receive a letter from the BVA which will inform you about how to proceed with your appeal. It may be several more months before you either receive a decision or have your hearing in front of the BVA law judge.
An appeal to the BVA can sometimes take years. A May 2012 audit by the VA of eight regional offices found some claims as old as four years. Managers at these locations blamed it on not having enough staff to deal with all the appeals.
If the BVA denies your appeal, your only recourse is then to take the case to the Court of Appeals for Veterans Claims, a federal court consisting of seven judges appointed by the president for a term of 15 years. It is part of the U.S. judiciary, not part of the Veterans Administration. It does hear veterans’ claims, but you cannot present any new evidence.
Let KBG Injury Law Help You With Your VA Disability Appeals
The VA will often deny your disability claim based on smaller technicalities, improperly filed appeals or a lack of medical evidence. It can be hard enough to prepare all the information that is needed and meet all the filing deadlines if you are healthy, let alone trying to deal with your disability. Let the experienced lawyers at KBG Injury Law help you with your VA disability claims. Our experienced team will ensure that all your paperwork is filed on time and work hard to get you the benefits to which you are entitled as a veteran.
The VA disability appeal process can be complex and frustrating. However, the professionals with KBG Injury Law can take all of the hassles off of your plate, and we might also be able to increase your chances of finally receiving benefits.
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