How to Win Your VA Disability AppealUpdated September 18, 2020 Veterans Disability
Getting the news that your VA disability claim has been denied can make you feel like there’s no hope for an approval. But that simply isn’t the case. Receiving a denial of your initial claim application simply opens the door to the appeal process.
The two most common reasons for appeal are either because the U.S. Department of Veterans Affairs has denied your VA claim outright or because it has assigned a disability rating a disabled veteran feels is erroneous. While the appeal process is notoriously long and arduous, it isn’t impossible. We’ve outlined everything you need to help make sure you can win your claim on appeal.
8 Steps to Appeal a VA Disability Claim Denial
There are several specific steps you’ll need to follow throughout the appeal process for veterans disability compensation. We’ve outlined them below.
- File a Notice of Disagreement
- Choose Appeal Type
- Wait for Statement of the Case
- Hire an Attorney
- Gather Evidence
- Complete the Substantive Appeal Form
- Wait for a Decision
- Request a Personal Hearing
Whether your claim has been outright denied or the VA has assigned your disability a rating that you believe erroneous, you do have some power in appealing your initial decision. You should also keep in mind that many, if not most, VA disability claims are denied upon first review, so you’re not alone, and you can appeal. There’s a specific process you’ll need to follow, including submitting specific forms or documents, so you’ll want to review the entire process and make a plan before getting started. Let’s take a closer look at every step of the process toward winning your VA disability claim on appeal.
1. File a Notice of Disagreement
The first thing you must do is file an official appeal, using the VA-stipulated Form 21-0598, or Notice of Disagreement. This is the official signal to the VA that you believe its judgment is in error and will be entering the appeal process. You will submit this notice either to your VA regional office or to the medical facility that issued the ruling. You should note that you have up to one year to file your Notice of Disagreement.
If you have received a notice of determination about more than one veterans disability claim, make sure to be clear about which one(s) you wish to appeal. You can appeal just one decision involved with all your claims – it’s not an all-or-nothing process.
At this point, you’ll likely be tempted to point out everything the VA did wrong when reaching its decision about your claim, but it’s best to show restraint when completing your Notice of Disagreement. You’ll have plenty of opportunities throughout the remainder of the process to point out errors and provide additional evidence.
The purpose of the Notice of Disagreement is simple: to preserve your right to appeal elements of your VA disability decision – if you go into too many specifics in your NOD, you may lose the right to challenge other areas of the VA’s decision that you didn’t mention in your NOD. It serves you better to remain as general as possible in this document.
What should you include in your NOD? Just the basics. The date of your denial and the VA’s decision. A statement that you disagree with the decision and plan to appeal. If you only intend to appeal a portion of the VA’s decision, you should make that clear in your NOD.
2. Choose Appeal Type
You have the option to choose the full appeal process, which involves having your case reviewed by the full VA Board of Appeals. Or, you can elect to have a Decision Review Officer evaluate your case. In situations of clear omission of error, the DRO process may be faster and more streamlined since it’s a more informal process.
The DRO holds the authority either to modify or to reverse a previous VA rating board decision. If you choose the DRO route from the beginning and still receive an unfavorable decision, you can still choose at that point to go the full VBA route. The advantage of choosing the DRO process is that you may get your ruling much more quickly, while the disadvantage is that if the DRO upholds your ruling, you’ll have to wait that much longer for a VBA review.
If you’re working with a skilled and qualified veterans disability attorney, your lawyer can help you decide which route is better at this point in the process, based on the elements of your claim and the reasons given for its denial.
3. Wait for Statement of the Case
Once the VA has reviewed your case, it will send you a Statement of the Case, which will describe any facts, laws, and regulations that were used in deciding your case. This statement also will include a VA Form 9, which represents a formal appeal to the Board of Veteran Appeals, in case you need to use it.
If you need to continue with the appeal process, you must submit this form either within 60 days of the date your Statement of the Case was mailed or within one year from the date the VA mailed its original decision, whichever comes later. In this form, you can point out the specific level of benefit you’re asking for, along with the mistakes you believe the VA has made in reviewing your claim.
4. Hire an Attorney
You are free at any point in this process, to seek counsel from a qualified and trusted VA disability lawyer. However, if you haven’t worked with a disability lawyer up to this point, now is an excellent time to seek one. The rest of the process will be complex and detail-oriented, and a VA disability lawyer can help guide you through everything you need to do from this point forward.
In particular, it’s important to note that Form 9 is a complex and lengthy document, so even if you filed your NOD alone, you may want support from a qualified VA disability lawyer to guide you through appropriately completing and submitting Form 9.
5. Gather Evidence
You may want to provide supplemental medical evidence that the original VA reviewers weren’t privy to in order to strengthen your case. At this point, you can begin working with your medical team to gather such documentation. Once you’ve filed your appeal with the BVA, you should receive a letter notifying you that the BVA has received it. At this point, you will have 90 days to add more medical documentation to your file, request a hearing, or change or select your legal representation.
6. Complete the Substantive Appeal Form
VA Form 9, also known as the Substantive Appeal Form, is complex and thorough. Its job is to make sure nothing was missed or overlooked in the decision the VA originally handed down. It is important to complete this form with as much information as you possibly can about why your VA claim should have been approved, or why you should have been assigned a different disability rating if that’s the portion of your decision you’re appealing.
7. Request a Personal Hearing
You also have the option of requesting a personal hearing, which is a meeting among you, your VA disability lawyer, and a VA official who can decide your case. During this hearing, you can provide personal testimony and appropriate medical evidence to support your claim, and you can request your hearing either with the BVA or with your VA regional office. If you choose the local route, you and your attorney will meet with a VA hearing officer from your VA regional office.
The other option means you must present your case to a member of the BVA, either at your VA regional office or at the VA headquarters in Washington, D.C. Some VA offices may even allow you to video conference with a BVA member in D.C. from your regional office. In either case, these hearings are much less formal than court hearings and will allow you to fully explain your case to a reviewer.
A judge may ask you some clarifying questions, but there’s no need to be worried about any cross-examination – that’s not part of this process. After a hearing, you’ll receive a decision either granting the compensation or VA disability rating you’ve requested, denying VA disability benefits or a requested VA disability rating, or sending the case back to your VA regional office for further information and clarification.
8. Wait for a Decision
The BVA will process appeals forms in the order in which they are received. Once it has reached a decision on your case, it will send you the results in writing to your home address. Unfortunately, you may need to wait as much as two years from the time the BVA receives your VA appeal until you receive a final decision. Complex cases may take even longer. If you must have a ruling earlier than waiting through the traditional process, you may write the BVA and provide convincing proof of exceptional circumstances. Such circumstances may include imminent foreclosure or bankruptcy, terminal illness, or an obvious VA error that caused a significant delay in getting your decision.
If you disagree with the BVA’s final ruling, you do have the option to appeal to the U.S. Court of Veterans Appeals for Veterans Claims. In most cases, you must file a Notice of Appeal with the Court within 120 days from the date the BVA’s decision is mailed.
When to Hire a VA Disability Lawyer
The point at which you decide to hire a VA disability lawyer is entirely up to you. You can work with a qualified disability attorney from the very beginning, which may strengthen your case and up your chances of being approved earlier in the process. Or, you may wait until you receive notification about the VA’s first decision regarding your VA claim. There’s no one right point at which you should engage with legal counsel. You can also choose to represent yourself throughout your VA appeal, but most applicants who appeal their decisions choose to work with legal counsel. You can also choose to be represented by a Veterans Service Officer.
Once you determine what path you’d like to take, you’ll need to complete VA Form 21-22 to grant permission for a VSO to represent you or VA Form 22a to authorize a VA disability attorney to serve as your representative.
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.
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.
File a VA Disability Appeal
If you’ve received a notice letting you know that the VA has denied your initial claim, don’t give up. It’s always worth it to try the appeal process, and if you follow some of the tips here, along with the counsel of a trusted VA disability attorney, you may find yourself winning your VA claim fairly early in the appeal process.