Denial of VA Disability Claims – What you need to knowUpdated April 11, 2020 Veterans Disability
Learn the common reasons for denial of VA disability claims. See how high the VA error rate is with wrongly denying valid claims, and understand your right to appeal all or part of the decision.
When VA disability claims are initially denied, the first thing veterans should know is that the VA has a very high error rate. After you receive your decision packet with details of your decision or award, you can appeal all or part of the decision. The appeal process can take a long time, but knowing that there is a high error rate and that a lot of denials are later overturned can help guide your decision whether to appeal.
Error Rate in Claim Processing is Very High
The Department of Veterans Affairs (DVA) admits that it makes a lot of errors when evaluating VA disability claims. However, it doesn’t officially agree with the magnitude of the problem. The DVA has stated that it has an error rate of 14%. The Center for Investigative Reporting analyzed a group of claims and found an error rate of closer to 38%.
In response to much media and Congressional attention to the problem with errors, the DVA claims it has reduced its error rate to 12% in FY 2016. In a recent sampling at the Los Angeles Regional Office, in a batch of 90 disability claims reviewed, 24 claims were found to be incorrectly processed. Incorrect dates to begin payments were assigned in two out of 30 claims reviewed.
Common reasons for initial denial
Just because your claim was denied does not mean you are not eligible for disability benefits. As noted above, the VA commonly makes errors in its determinations, by not applying the facts of your case correctly. Mistaken denials can also result from the DVA misplacing documents from your file. An independent review of documents at a VA regional office found hundreds of evidentiary documents from claimants files had mistakenly been put in the shredding pile.
For these reasons, it’s important to request a complete copy of your claim file after you receive your decision.
Once you’ve reviewed your file for any procedural errors, it may be possible to address certain problems with the substance of your claim. Some issues may be resolved by contacting the VA — such as, if your claim was denied for failure to attend a VA medical exam, you can ask the VA to reopen your claim and schedule the exam. If the VA agrees you have a disability, but says it doesn’t have evidence of your service record, you can ask the VA to reconsider if you have evidence of your service.
Denials also commonly result from these areas that may require more work and evidence to challenge:
- Not enough medical evidence to support your disability;
- Agreeing that you have a disability, but not finding enough evidence to show that it is connected to your military service;
- They may agree you have a disability, but find that is was pre-existing to your military service and not aggravated by your service.
Many of these types of denials have a strong chance on appeal if you can secure documentation to refute them. It’s best to plan ahead and cover all your bases in your initial application. Track down all of your own military records and medical records; don’t rely on the VA to do that for you. In addition, seek your own medical opinion showing the connection between your disability and your military service. Seek advice to spot any weaknesses in your claim before you file it.
A case of missing evidence
A story from the San Francisco ABC affiliate highlighted a case of a Navy veteran whose claim was initially denied. The veteran served in 1983 on a destroyer that saw battle off the coast of Lebanon. In 2008, he filed a disability claim for post-traumatic stress disorder and depression.
The VA denied his claim, because it said it couldn’t find actual evidence that he was in combat. A VA employee later came forward and said she’d done a Google search and actually found that the destroyer was engaged in combat, but the VA still issued the denial. The Navy vet has filed another claim and is waiting to hear a decision.
Since this veteran’s initial claim in 2008, the DVA has relaxed its evidence requirements for showing PTSD. However, this case shows a powerful example of how a claim can be denied for the wrong reasons.
The Center for Investigative Reporting has concluded that many veterans are unfairly denied their benefits. If you’ve received a denial letter, keep reading.
Denial of VA disability benefits – Options for review before appeal
If you’ve received a denial of your VA disability benefits claim, there are some options to consider before filing an appeal.
Don’t be discouraged when you receive a denial. You should be aware that the VA has admitted to a high error rate in processing its claims. The denial could be due to an error that can be cleared up, or it could be due to missing or misread evidence that can also be fixed.
You are always entitled to appeal all or part of an initial decision, within one year from the date the decision was mailed to you. If you agree with part of the decision, you can appeal only the part you disagree with. For example, even if the DVA agreed that your disability is service-connected, and gave you a rating, you may disagree with the level of rating and/or disagree with the date assigned for the benefits to begin.
Veterans should know that the formal appeal process currently takes an average of three years to resolve. While claims are initially rated at your local VA Regional Office, usually in your state, the formal appeals process kicks the file up into the national level to the Board of Veterans Appeals. To help with the backlog of appeals, the DVA has created an initial review level that takes place still within the regional office level.
Depending on what type of claim you filed, these are the options for review before moving to a full-blown formal appeal request.
Standard Claim – Review by Decision Review Officer
If you filed a claim through the standard, traditional claims process and you disagree with a decision, you can request a review by a Decision Review Officer. Technically, you must first file the Notice of Disagreement (NOD), stating that you disagree with all or part of the decision and you want to appeal.
According to the VA, “after you send your NOD you may request that your file be reviewed by a Decision Review Officer (DRO) from your local VA office. DROs offer a second review of your entire file and can also hold a personal hearing on your claim.”
The DRO conducts a complete review of the decision based on the record. The DRO can pursue additional evidence, and/or conduct an informal meeting with the applicant. After this review, the DRO can uphold or overturn the original decision.
If the DRO review does not fully resolve your dispute, you can continue to the next phase of the appeal process, which is to file a VA Form 9 (Substantive Appeal). If you choose not to utilize the DRO process, you can move straight to the appeal.
You should know that the U.S. Government Accountability Office (GAO) issued a report on DROs, finding that they are often not well trained. The report also found that veterans are often not given enough information to make informed decisions. While the option for a DRO review before launching a lengthy appeal may bring some advantages, be aware of the limitations. This is a good time to seek advice from a Veterans Service Organization or an experienced attorney to fully understand your rights and what you can expect based on your particular claim.
Fully Developed Claim
If you decide to utilize the Fully Developed Claim (FDC) process, it contains a layer built in that allows for reconsideration. If you disagree with all or part of the decision on your FDC, you can work with your representative to get additional evidence needed and possibly resolve the problem at that point by requesting reconsideration. With FDCs, the process is usually that the VA notifies the veteran in detail about the reasons for denial. The vet then has the option to obtain any needed evidence and ask for reconsideration as a FDC. There is some evidence in the pilot programs that this avenue can help avoid the long appeals process.
It is always a good idea to get legal advice when you’re deciding how to contest or appeal all or part of your claim. There is free assistance available at state veteran’s affairs offices, and through several VSOs (Veterans Service Organizations). But when you’re facing a denial, it’s certainly worth your time to set up a free consultation with a VA accredited attorney. Attorneys who are experienced at handling VA disability benefits claims can advise you of how your unique case is likely to fare under different appeal scenarios. If you decide to hire an attorney, most work on contingency and only charge you fees if you are successful on appeal.