Appealing Veterans Disability Benefits Claim DenialsUpdated April 11, 2020 Veterans Disability
Find out how long you have to appeal denial of Veterans disability claims. Learn the steps in the appeal process, what to expect from a hearing, and how to get help with your appeal.
If your claim for disability benefits is denied, you have the right to appeal. You must file the appeal within one year of the initial decision. Much media attention has been given to the high error rate in denials, so it makes sense to consider appealing the denial. Appeals represent almost one-third of the 800,000 pending veterans disability claims. A recent report found that the Board of Veterans Appeals found mistakes in 73% of reviewed cases.
What you can appeal
According to the VA, an appeal is “a request for the Board of Veterans’ Appeals to review a local VA office decision on your claim.” You have the right to appeal the decision for any reason. You may have received only a partial denial, while another part of your claim was approved – in that case, you can appeal the partial denial. Or, if the VA granted your disability claim, you can appeal the level of benefits awarded.
According to the VA, the two most common reasons for appeals are:
- The VA denied benefits for a disability the veteran believes began in military service, and
- The veteran believes the disability is more severe than the VA rated it.
Appeals of local decisions are made to the Board of Veterans’ Appeals (also known as “BVA” or “the Board”). The Board is part of the VA and is located in Washington, D.C. The Board members are attorneys with experience in veterans issues.
The appeals process
Filing an appeal is a two-part process. You begin the appeal process by sending a form called a “Notice of Disagreement” to your local VA office. You have to file your notice within one year from the date the VA mailed its initial decision. After the local office receives your Notice of Disagreement, it will prepare and send you a Statement of the Case. The Statement will explain the evidence, laws and regulations relied on to decide your case. Along with the Statement, they will send you a Substantive Appeal Form (VA Form 9).
The second step you take in filing an appeal is to fill out the Substantive Appeal Form. In this form, you state the benefits you are seeking, identify any mistakes in the Statement of the Case, and clarify whether you would like a personal hearing. The Substantive Appeal Form is also supposed to be filled out within one year from the date of the VA’s initial decision. However, if the VA sent you its Statement of the Case near the end of that year, you still have 60 days from the date that they mailed you the Statement of the Case to file your Substantive Appeal Form..
For example, if the VA mailed you its initial decision on November 1, 2018, you file your Notice of Disagreement on February 1, 2019, and the VA mails you its Statement of the Case on October 20, 2019. You would have 60 days from October 20, or until December 19, 2019, to file your Substantive Appeal Form.
You can request a personal hearing, either with someone from your local VA office or with a Board of Appeals member. The quickest way to get a hearing with a Board member is via videoconferencing.
Hearings are informal, and you can attend with your representative. They are mostly an opportunity to clarify the issues at hand. After the hearing, the Board member will send you a decision. If they deny the appeal, you have certain additional avenues to contest the appeal.
Getting help – Most people use representatives
Most veterans use representatives to help make their case on appeal. Anyone helping a veteran with an appeal must be accredited by the VA. You can receive assistance from various Veterans’ Service Organizations, like the American Legion and the Disabled American Veterans, and many have staff inside local VA offices. Or choose to be represented by a VA-approved attorney who is experienced and knowledgeable on VA disability matters.
The appeals process can take years, unfortunately, so consider any advantage you can take to speed along your claim and to make it thorough. Seeking help from a VA approved disability attorney can help you present your case as clearly and strongly as possible to improve your chances of collecting your disability benefits.
When VA disability claims are denied, should I just reopen the claim?
Veterans often wonder, when their VA disability claims are denied, should they just reopen a new claim. It’s understandable that the lengthy delay in the appeals process might lead vets to wonder about this option – but there are several key points to keep in mind:
First, if you reopen a claim instead of appealing it, and you are eventually given an award, it may only go back to the date you reopened the claim, and not the date you filed the original claim.
Second, asking for a claim to be reopened after a denial requires a showing of “new and material” evidence. If you don’t have something new and material that you didn’t show them before, you could be out of luck.
It can be a tricky decision on how to handle a denied claim. This is the time you should consider getting experienced opinions to fully review your options. Free advice can be provided by state veteran’s affairs offices and by Veterans Service Organizations. You may also hire an attorney to advise which option is best given your particular situation.
Once a decision is made on VA disability claims, you have one year to appeal. If an appeal is not filed within that time, the decision becomes final. The only way to receive reconsideration of a final decision is with Clear and Unmistakable Error, or to reopen the claim presenting new and material evidence.
It may help to understand that, from the VA’s point of view, there are only three types of claims:
- A new or original claim
- A claim for revision of a previous final decision based on CUE (Clear and Unmistakable Error)
- A reopened claim with new and material evidence
So, if you are still within the one-year window to appeal and you believe your claim should be approved as is, in theory an appeal is the appropriate route. The VA has admitted to having a high error rate, and errors and other issues often can turn your way on appeal.
If you wonder whether you might not appeal and instead try one of the other routes, in theory, this means either (1) there is clear and unmistakable error (this is a very high standard and something you should discuss with an experienced attorney or representative) or (2) you have new and material evidence that was not reviewed before which should therefore be grounds to reopen the claim. If you want to reopen a claim simply because you think you might save time from the appeals process, you are on shakier ground.
Effective dates – When considering your options with reopening and/or appeal, it is vital that you know the impact of all options on the effective date of your claim. If you eventually win an award, or an increase in your award, the award will be backdated to the effective date of your claim. The effective date is usually the date you filed the current claim (with some exceptions that allow the award to go back further). The distinction could cost you tens of thousands of dollars, depending on the award and the time different from your original claim to the reopened claim.
Reopening a claim that was denied
In general, when VA disability claims are denied, a veteran can always reopen a claim with “new and material” evidence. This applies when you are addressing the same condition.
“New” evidence is information not previously considered by the VA. “Material” evidence relates to an unproven fact necessary to the claim. If the denial was based on lack of a service connection, then witness statements or other evidence can help resolve that question; of the denial was based on your condition, then new medical evidence or opinions may help.
There is little evidence that, given the choice, reopening a case rather than appealing it will improve your chances of approval, or your level of award. However, each case is unique and the distinctions can be highly confusing. You can often request a free consultation with an experienced attorney to help you understand the options.